All married persons, whether they have signed a marriage contract or not, are subject to a matrimonial regime determining the pecuniary consequences of their marriage, not only concerning their relations but also those they have with third parties.
In an international context, it is necessary to begin with looking for the law applicable to the matrimonial regime of the spouses, which determines their matrimonial regime.
Until recently, in the absence of an agreement or a formal choice of the spouses, the case law had adopted as the main criterion for the determination of the law applicable to the matrimonial regime, the place of first marital residence where the spouses had lived in a stable and lasting way after the marriage.
However, Law No. 1.448 of June 28, 2017 on private international law, published in the Journal of Monaco on July 7, 2017, substantially modifies the conflict of laws rules in the law of matrimonial regimes.
The internationalization of exchanges and the diversity of nationalities on the territory of the Principality fully justifies this reform. Therefore, Monaco had every interest in adopting a code of private international law answering very concrete questions of jurisdiction and applicable law.
For illustrative purposes, regarding the matrimonial agreements, the new Code of Private International Law strengthens the principle of freedom of matrimonial agreements concluded before and / or after marriage, while allowing spouses to choose before or during marriage the applicable law in the case of divorce or legal separation.
Indeed, the Monegasque legislator wanted to give spouses greater freedom of choice, while limiting it to the most relevant criteria, so that they correspond to the most objective connections possible with the situation of the spouses.
In this sense, the spouses have the choice among the following laws:
- Law of the State in whose territory the spouses establish their domicile after marriage,
- Law of the State of which one of the spouses is a national,
- Law of the State in whose territory one of the spouses is domiciled,
- Law of the State in which the marriage takes place.
The Code of Private International Law also enshrined the principle of indivisibility of the matrimonial regime. Indeed, the designated law applies to all the assets of the spouses.
Regarding the form of the choice made by the spouses, the law designated as applicable must be set out in a written document signed by both spouses. It shall take the form provided for in the marriage contract by the designated law or by the law of the State where the act is drafted.
In Monaco, as in many countries, the marriage contract is a notarial act.
The principle of mutability of matrimonial agreements implies that spouses may modify at any time the law designated as applicable, subject to verification that this change of the applicable law does not require a judicial approval according to domestic law.
In the absence of choice, the matrimonial regime is governed:
- by the law of the State in whose territory the spouses establish their domicile after marriage;
- In the absence of domicile, by the law of the State of which both spouses are nationals;
- In the absence of a domicile or a common nationality, by Monegasque law.
In view of the above, we strongly advise our clients of all nationalities to consider the impact of this new legislation on spousal matrimonial agreements.
To this end, the law firm CMS Pasquier Ciulla & Marquet has a team specialized in matrimonial property law which remains at your disposal to analyze your personal and patrimonial situation and propose solutions that allow you to better anticipate your asset planning.