Alceis Blog

Expatriation and matrimonial regime

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expatriation; marriage

“I wonder why I did not divorce. Traditionalism (I come from a family where divorce is taboo)? Tenacity (I don’t admit failure)?”: these words were expressed by an expat’s wife answering our survey “expatriate’s partner”. If divorce rate regularly increases everywhere, expatriate couples divorce more often than sedentary couples. The Telegraph, a British newspaper, stated 445 Dubai foreign couples living in Dubai ended their marriages in 2011—a 30 percent increase from 2009.

I do not intend to discourage you: expatriate is a wonderful family adventure! Expatriate or not, information helps!

Checking your matrimonial regime

Did you check your matrimonial system before being expatriate?  Private international law is extremely complex and any expatriate couple should be very careful about their matrimonial regime, when there is no prenuptial agreement. Transferring abroad the residence of a couple may affect and modify the matrimonial regime. This modification has important consequences on the patrimonial point of view, in case of divorce (which law will apply?) or if one of the partners passes away. The principle is as follows: couples with no prenuptial agreement married before September 1, 1992 are ruled by the principle of the autonomy of will. The criterion is the first effective and establishes the matrimonial residence. If the couple married after September 1st 1992, the Hague Convention March 14, 1978 applies.

The Hague Convention

Any couple can choose its matrimonial system thanks to a prenuptial agreement. However, many couples marry without signing a prenuptial agreement. A couple married after Sept. 1st 1992 is submitted to the dispositions of the Hague Convention 1978. This convention introduces the notion of mutability of the prenuptial agreement. The mutability, which means changing the applicable law, can be automatic or voluntary.

Examples:

A French couple, married without prenuptial agreement, and expat in Germany has to check if the transfer of the residence from France to Germany will, or not, affect the matrimonial system. This couple was married before Sept. 1st 1992:

1-    They married in 1985. After the marriage, they settled in Paris and then moved to Munich in 1995. The first permanent and effective residence is France. They are submitted to the French legal system. Their new residence in Germany does not change their matrimonial regime.

2-    They married in 1985 and settled immediately later in Germany. The first permanent and effective residence is in Germany, and they are submitted to the German law, not the French law, even if the marriage was celebrated in France.

The location of the first permanent, effective and voluntary residence determines the matrimonial regime of a couple married without prenuptial agreement before Sept. 1st 1992. This regime is permanent and indivisible, applies to the totality of their holdings, even if the couple finally leaves Germany a few years later and comes back to France. The consequences of the application of the French or German regime to the same holdings will of course be different.

The length of the stay in a country

If the couple was married after Sept. 1st 1992, married with no prenuptial agreement in 1993, settled in Paris after their marriage and lived there three years, their first common residence was located in France: they are married under the French law. If they later move to Germany where they live 10 years, the German legal regime is applicable. The law of the new usual common residence becomes applicable when the couple spent more than 10 years in the new country. They are then submitted to the mutability of their matrimonial regime, with no retro-activity. This complex situation should be avoided. The best thing to do is to choose expressly the French regime, signing a postnuptial agreement.

On the other hand, if a nuptial agreement was established, the partners can choose expressly the applicable law to their matrimonial regime (Art. 11, Hague Convention 1978). Please note that every country imposes a legal regime, but the legal regime is different from one country to another.

To conclude, the above principles give a general frame, but any situation deserves a precise study. The dissolution of a marriage, by divorce or death may have bothering consequences on non informed couples. Whether divorce is caused by adultery, abuse, the challenges of expatriation or simply growing apart, the consequences of divorce occurring while living abroad can be extreme. The impact on children can be especially traumatic because expatriate family life is a critical stabilizing factor in a childhood that is frequently rootless and uncertain.

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Marielle was very helpful and patient and I do not think I could have got anywhere to whe