The questions of the primary matrimonial regime and the application of Regulation 2016/1103

Abstract

presentation of the questions that arise between married couple with different nationality, domicile or residence, or when their property is abroad (or the creditors or borrowers are foreigners), with respect to their essential rights and duties upon marriage, and regardless of the agreed or legal regime, when Regulation 2016/1103 is applied by the courts or authorities of the States participating in the enhanced cooperation. Problems mainly arise in relation to the applicable law, since, under this European Regulation, the primary matrimonial regime could fall within the imperatives rules (statement 18), which function as a priori limit on conflict rules. However, we wonder whether it would not be more appropriate to consider the content of the rules governing these essential rights and duties of marriage, so that public order can operate as a posteriori limit.