Law No. 1.448 of 28 June 2017 on private international law, published in the Journal of Monaco on 7 July 2017, substantially modifies the rules of conflict of laws and jurisdictions existing before the reform. The new law codifies the rules of Monegasque private international law which were before the reform essentially set out by case law.
The new Code on Private International Law established by Law No. 1.448 of 28 June 2017 defines the jurisdiction of the courts of Monaco and the conflict of laws rules that Monegasque courts will have to apply to various issues such as the status and capacity of natural persons, marriage, divorce, parentage, maintenance obligations, estates, contractual and non-contractual obligations, trusts, etc.
While codifying some of the solutions already adopted by the case law, Law No. 1.448 brings several legislative innovations, particularly in succession and matrimonial matters.
The Code on Private International Law introduces several real advances in succession matters. Henceforth, a single law (that of the domicile of the deceased at the time of his/her death) applies to any national or international succession, unlike the previously applicable system of scission. Moreover, the Code on Private International Law establishes the professio juris which allows the testator to choose his/her national law to govern his/her estate (movable and immovable), thereby derogating from the default application of the Monegasque law, as the law of last domicile. For certain persons of foreign nationality whose national law does not know or applies only very restrictively forced heirship rights, the new provisions are of particular interest since they allow the testator to benefit from the freedom of disposition in accordance with his/her national law. Furthermore, even if the new law contains provisions reaffirming the principle of the reserved portion of the estate, the express choice of the national law should make it possible to avoid or at least limit estate disputes under the law of domicile.
In the case of matrimonial agreements, the Code strengthens the principle of freedom of matrimonial agreements concluded before and / or after the marriage, while allowing spouses to choose before or during the marriage the applicable law in the event of divorce or legal separation.
There are many other advances in terms of trusts, foreign agreements as to succession, simplification of the procedure for the recognition in Monaco of foreign decisions, etc.
These new provisions allow for better matrimonial and / or estate planning and anticipation, which are of major importance in the international context of Monaco.
In terms of conflicts of jurisdiction, the Code on Private International Law introduces a possibility of international lis pendens, thus enabling the Monegasque courts to stay the proceedings if a foreign jurisdiction has been seized of an identical issue in the first place.
In the absence of transitional provisions, the law is immediately applicable. Thus, starting with 8 July 2017, the provisions of the new law on Monegasque private international law are likely to apply to all pending and future legal relationships and situations.
In view of the above, we urge our clients of all nationalities to consider the impact of this new legislation on their existing financial and estate-planning arrangements (by means of wills, trusts, foundations or any other structures).
CMS Pasquier Ciulla & Marquet’s team specialized in property and inheritance law stays at your disposal to analyze your personal and financial situation and propose solutions that would allow you to better anticipate your estate and / or succession planning and re-evaluate as appropriate the relevance of your existing estate-planning choices and optimize their tax aspects.