The European Commission has recently announced that it is to proceed to formally adopting two new proposals which aim to clarify property regimes for international married couples and international registered partnerships, by way of enhanced co-operation procedure.

The two proposals, one of which deals with married couples and the other registered partnerships, were initially launched by the Commission back in March 2011. However, they failed to reach formal adoption at the European Council in December 2015, as all twenty- eight member states could not reach a unanimous decision as to the final content of the proposals.

The primary objective of the proposals is to clarify the procedure for dividing up joint assets of individuals, that are located in different member states, upon the event of: divorce; separation; or death. The proposals aim to implement a single set of measures that can be applied universally throughout member states, by:

  • clarifying which national court is the competent body to distribute/manage property in the case of divorce, separation or death;
  • clarifying the rules of applicable law i.e. which law shall apply if the laws of several countries potentially apply;
  • recognising and enforcing the judgement of another member state in relation to property matters.

Figures estimate that presently there are sixteen million international couples falling within the EU’s remit and the associated legal costs of dealing with the separation of a number of those couples are in the region of €1.1 billion per year. The figures clearly highlight that European citizens experience burdensome administrative procedures and unclear legal situations as a consequence of cross-border relationship breakdown.

Against this backdrop, and the failure at the European Council in December 2015 to adopt the proposals, seventeen out of the EU’s twenty-eight member states, campaigned to the Commission to put forward a decision to the Council authorising the implementation of the proposals by way of enhanced co-operation procedure; which was finally adopted by the Commission on 2 March 2016.

The proposals will of course only apply to those seventeen member states who chose to participate in the initiative and will not apply to the eleven non-participating member states, which includes the UK.

Non-participating member states shall therefore continue to apply their national law to cross-border situations. However, all non-participating member states will maintain their right to join the other Member States in adopting the legislative framework if they so wish at a later date (Article 331 TFEU)