Divorce with cross-border assets is without any doubts of the utmost importance for many international coupes having their property in different countries of the EU. The principal questions to be settled in this respect are the following:
- the court of which country has jurisdiction in the particular case,
- which law is to be applicable.
Sixteen EU states including Germany, Spain, Czech Republic, Italy, the Netherlands wishing to establish an enhanced cooperation in these matters initiated the creation of COUNCIL REGULATION (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and recognition and enforcement of decisions in matters of matrimonial property regimes.
Divorce with cross-border assets – which country has its jurisdiction under Regulation 2016/1103?
The general rule reflected in Article 5 of the Regulation envisages that the court of a Member State, which is seized to rule on an application for divorce, legal separation or marriage annulment, has also jurisdiction in cases related to matrimonial property division. However, it might be so that no court has been seized to rule on a divorce matter. Then the jurisdiction will consequently lie (according to article 6) with the courts of those member states:
- in whose territory the spouses are habitually resident at the time the court is seized, if no
- in whose territory the spouses were last habitually resident, in case one of the spouses still lives there, if no
- in whose territory the respondent is habitually resident at the time the court is seized, if no
- of the spouses’ common nationality at the time the court is seised.
It should be admitted that pursuant to article 7 the parties may agree that jurisdiction lies within the court of a MS where the marriage has been concluded or of a MS which law is applicable under the described Regulation. Moreover, article 9 of the Regulation gives a chance to decline jurisdiction, if the marriage in question is not recognised in a MS for the purposes of matrimonial property regime proceedings. In that case according to Article 9(2), the parties might choose a court in another MS.
However, even if no state has its jurisdiction under the provisions mentioned above, the factor of immoveable property location comes on the scene. Article 10 gives jurisdiction to courts of that MS where immoveable property of one or both spouses is located.
Divorce with cross-border assets – which law should be applicable under Regulation 2016/1103?
As for the law applicable in such proceedings, two major options are available. Firstly, according to article 22, the spouses are entitled to choose the law applicable for matrimonial property matters. That law might be the law of the country where they (or at least one of them) are habitually resident or of the country of their nationality (or nationality of at least one of them). In absence of the choice, the following option arises. The applicable law in such situation is the law of the State (1) of the spouses’ first common habitual residence after the conclusion of their marriage; or, failing that, (2) of the spouses’ common nationality at the time of the conclusion of their marriage; or, failing that, 3) of the State with which the spouses jointly had the closest connections at the time of the conclusion of their marriage.
Divorce with cross-border assets – what in case of countries countries, such as Poland, which are not parties to the Regulation?
It should be taken into account that 12 EU states including Poland, UK, Denmark, Estonia, Lithuania, Latvia, Hungary, Ireland, Romania and Slovakia are not parties to the Regulation and, hence, its provisions are not applicable in the mentioned countries. In case of Polish citizens facing divorce and having common property in different countries, the key point in matters of applicable law and jurisdiction is in which particular country the property is. The matrimonial property regime after divorce might vary depending on the fact, whether Poland has agreements with the state on the matter. Anyway, the provisions of Polish international private law should be taken into account.
Divorce with cross-border assets – Article 1103 of the Polish code of civil procedure
Article 1103 of the Polish code of civil procedure mentions the cases where jurisdiction in matters of matrimonial property is vested in Polish courts. It covers situations in which both spouses have Polish citizenship, or both of them lived in Poland and one of the spouses still remains there, or the claimant habitually resident in Poland (and has been living in Poland at least for a year before the start of proceedings) or has Polish citizenship (and lives in Poland at least for half a year before the start of proceedings). Article 1106 adds to this provision that the jurisdiction should be given to Polish courts in case if a significant part of the matrimonial property is located in Poland.
As for applicable law on the matter, the Polish Act on International Private Law (Article 51) states that the applicable law is the law of the country where the spouses are residing or (if they are residing in different states) of the country with which both spouses have the closest ties.
In any case, the issues related to divorce with cross-border assets, i.e. matrimonial property division in situations where the property is in different states, are quite intricate for the countries, which are not parties to the Regulation, and require expert advice.