10/01/2025

Determining the Marital Economic Regime in Marriages with an International Element: Key Aspects for Identifying the Applicable Law

By Anna Poy Magriñá – Lawyer.

 

Introduction

In marriages with an international or foreign element, determining the applicable law to the marital economic regime is of particular importance. This not only helps us understand the type of marital economic regime the spouses are subject to and its economic and property implications but also the regulations that apply to its liquidation in case the marital bond is dissolved.

In the context we are addressing, characterized by the presence of an international element, it is important to start from the premise that the law applicable to the marital economic regime does not have to be the common law (Spanish Civil Code) or any of the regional civil laws (e.g., Catalan Civil Code, Balearic Civil Code).

On the contrary, in these cases, international conflict-of-laws rules must be considered to determine the law governing the marital economic regime. Naturally, this will depend on the specific circumstances of each marriage, and therefore, each case must be examined based on the particular circumstances that apply.

Applicable Legislation: Regulation 1103/2016 and the Civil Code

Regulation 1103/2016, in force since January 29, 2019, establishes enhanced cooperation in the areas of jurisdiction, applicable law, recognition, and enforcement of rulings concerning marital economic regimes.

Given its erga omnes effect, Spanish judges must refer to its legal provisions to determine the applicable law for the marital economic regime. Therefore, for those states that are parties to the regulation, its application will be mandatory by their judicial bodies, regardless of the nationality of the parties or their habitual residence.

I.- Application of Regulation 1103/2016

According to Article 69.3 of Regulation 1103/2016, the provisions regulating the applicable law only come into play if the marriage took place after its entry into force on January 29, 2019, or if the spouses opted for an applicable law after that date.

First, in Article 22, the Regulation gives primacy to the will of the parties, allowing them to expressly choose the applicable law, although it establishes a list of laws that can be chosen based on certain connecting factors.

In the absence of a choice by the parties, the regulation sets forth a hierarchy in Article 26 for determining the applicable Law, which results in the following order:

  1. The Law of the spouses’ first common habitual residence after the conclusion of the marriage; or, failing that
  2. of the spouses’ common nationality at the time of the conclusion of the marriage; or, failing that
  3. with which the spouses jointly have the closest connection at the time of the conclusion of the marriage, taking into account all the circumstances.

Notwithstanding the above, we must briefly mention the possibility that the judge may designate a law other than the one resulting from the first of the aforementioned criteria. This power is legally limited to situations where the requirements of the third paragraph of the previous article are met, with the burden of proof lying on the claimant.

 

II.- Application of Spanish Domestic Law: The Civil Code

If the marriage was celebrated before the entry into force of Regulation 1103/2016, i.e., before January 29, 2019, the applicable law for the marital economic regime must be determined according to Article 9.2 of the Spanish Civil Code.

This article, which regulates the effects of marriage, i.e., the marital economic regime, establishes the following as the applicable law:

  1. The common personal law of the spouses at the time of the marriage.
  2. If there is no common law, the personal law or the law of the habitual residence of either spouse, provided it has been chosen through an authentic document before the marriage.
  3. In the absence of such a choice, the law of the place of the common habitual residence immediately following the marriage.
  4. If no common residence exists, the law of the place where the marriage was celebrated.

Conclusion

Based on the above, we can see that correctly determining the applicable law for the marital economic regime is crucial. First, it is important to know if there has been an express choice by the parties, and second, to know the date on which they married. As we have seen, this will determine whether the European Regulation applies or whether the conflict-of-laws rules contained in Spanish domestic law should be followed