CONVENTION ON THE LAW APPLICABLE TO MATRIMONIAL PROPERTY
REGIMES
(Concluded 14 March 1978)
The States
signatory to this Convention,
Desiring to
establish common provisions concerning the law applicable to matrimonial
property regimes,
Have resolved to
conclude a Convention for this purpose and have agreed upon the following
provisions -
chapter i -
scope of the convention
Article 1
This Convention
determines the law applicable to matrimonial property regimes.
The Convention
does not apply to -
(1)
maintenance obligations between spouses;
(2) succession rights of a surviving spouse;
(3) the capacity of the spouses.
Article 2
The Convention
applies even if the nationality or the habitual residence of the spouses or the
law to be applied by virtue of the following Articles is not that of a
Contracting State.
chapter ii -
applicable law
Article 3
The matrimonial
property regime is governed by the internal law designated by the spouses
before marriage.
The spouses may
designate only one of the following laws -
(1) the
law of any State of which either spouse is a national at the time of
designation;
(2) the law of the State in which either spouse has his habitual
residence at the time of designation;
(3) the law of the first State where one of the spouses establishes a new
habitual residence after marriage.
The law thus
designated applies to the whole of their property.
Nonetheless, the
spouses, whether or not they have designated a law under the previous
paragraphs, may designate with respect to all or some of the immovables, the
law of the place where these immovables are situated. They may also provide
that any immovables which may subsequently be acquired shall be governed by the
law of the place where such immovables are situated.
Article 4
If the spouses,
before marriage, have not designated the applicable law, their matrimonial
property regime is governed by the internal law of the State in which both
spouses establish their first habitual residence after marriage.
Nonetheless, in
the following cases, the matrimonial property regime is governed by the
internal law of the State of the common nationality of the spouses -
(1) where
the declaration provided for in Article 5 has been made by that State and its
application to the spouses is not excluded by the provisions of the second
paragraph of that Article;
(2) where that State is not a Party to the Convention and according to
the rules of private international law of that State its internal law is
applicable, and the spouses establish their first habitual residence after
marriage -
a) in a State which has made the
declaration provided for in Article 5, or
b) in a State which is not a Party
to the Convention and whose rules of private international law also provide for
the application of the law of their nationality;
(3) where
the spouses do not establish their first habitual residence after marriage in
the same State.
If the spouses
do not have their habitual residence in the same State, nor have a common
nationality, their matrimonial property regime is governed by the internal law
of the State with which, taking all circumstances into account, it is most
closely connected.
Article 5
Any State may,
not later than the moment of ratification, acceptance, approval or accession,
make a declaration requiring the application of its internal law according to
sub-paragraph 1 of the second paragraph of Article 4.
This declaration
shall not apply to spouses who both retain their habitual residence in the
State in which they have both had their habitual residence at the time of
marriage for a period of not less than five years, unless that State is a
Contracting State which has made the declaration provided for in the first
paragraph of this Article, or is a State which is not a Party to the Convention
and whose rules of private international law require the application of the
national law.
Article 6
During marriage
the spouses may subject their matrimonial property regime to an internal law
other than that previously applicable.
The spouses may
designate only one of the following laws -
(1) the
law of any State of which either spouse is a national at the time of
designation;
(2) the law of the State in which either spouse has his habitual
residence at the time of designation.
The law thus
designated applies to the whole of their property.
Nonetheless, the
spouses, whether or not they have designated a law under the previous
paragraphs or under Article 3, may designate with respect to all or some of the
immovables, the law of the place where these immovables are situated. They may
also provide that any immovables which may subsequently be acquired shall be
governed by the law of the place where such immovables are situated.
Article 7
The law
applicable under the Convention continues to apply so long as the spouses have
not designated a different applicable law and notwithstanding any change of
their nationality or habitual residence.
Nonetheless, if
the spouses have neither designated the applicable law nor concluded a marriage
contract, the internal law of the State in which they both have their habitual
residence shall become applicable, in place of the law previously applicable -
(1) when
that habitual residence is established in that State, if the nationality of
that State is their common nationality, or otherwise from the moment they
become nationals of that State, or
(2) when, after the marriage, that habitual residence has endured for a
period of not less than ten years, or
(3) when that habitual residence is established, in cases when the
matrimonial property regime was subject to the law of the State of the common
nationality solely by virtue of sub-paragraph 3 of the second paragraph of
Article 4.
Article 8
A change of
applicable law pursuant to the second paragraph of Article 7 shall have effect
only for the future, and property belonging to the spouses before the change is
not subject to the new applicable law.
Nonetheless, the
spouses may at any time, employing the forms available under Article 13,
subject the whole of their property to the new law, without prejudice, with
respect to immovables, to the provisions of the fourth paragraph of Article 3
and the fourth paragraph of Article 6. The exercise of this option shall not
adversely affect the rights of third parties.
Article 9
The effects of
the matrimonial property regime on the legal relations between a spouse and a
third party are governed by the law applicable to the matrimonial property
regime in accordance with the Convention.
Nonetheless, the
law of a Contracting State may provide that the law applicable to the
matrimonial property regime may not be relied upon by a spouse against a third
party where either that spouse or the third party has his habitual residence in
its territory, unless
(1) any
requirements of publicity or registration specified by that law have been
complied with, or
(2) the legal relations between that spouse and the third party arose at
a time when the third party either knew or should have known of the law
applicable to the matrimonial property regime.
The law of a
Contracting State where an immovable is situated may provide an analogous rule
for the legal relations between a spouse and a third party as regards that
immovable.
A Contracting
State may specify by declaration the scope of the second and third paragraphs
of this Article.
Article 10
Any requirements
relating to the consent of the spouses to the law designated as applicable
shall be determined by that law.
Article 11
The designation
of the applicable law shall be by express stipulation, or arise by necessary
implication from the provisions of a marriage contract.
Article 12
The marriage
contract is valid as to form if it complies either with the internal law
applicable to the matrimonial property regime, or with the internal law of the
place where it was made. In any event, the marriage contract shall be in
writing, dated and signed by both spouses.
Article 13
The designation
of the applicable law by express stipulation shall comply with the form
prescribed for marriage contracts, either by the internal law designated by the
spouses, or by the internal law of the place where it is made. In any event,
the designation shall be in writing, dated and signed by both spouses.
Article 14
The application
of the law determined by the Convention may be refused only if it is manifestly
incompatible with public policy ("ordre
public").
chapter iii -
miscellaneous provisions
Article 15
For the purposes
of the Convention, a nationality shall be considered the common nationality of
the spouses only in the following circumstances -
(1) where
both spouses had that nationality before marriage;
(2) where one spouse voluntarily has acquired the nationality of the
other at the time of marriage or later, either by a declaration to that effect
or by not exercising a right known to him or her to decline the acquisition of
the new nationality;
(3) where both spouses voluntarily have acquired that nationality after
marriage.
Except in the
cases referred to in sub-paragraph 1 of the second paragraph of Article 7, the
provisions referring to the common nationality of the spouses are not
applicable where the spouses have more than one common nationality.
Article 16
For the purposes
of the Convention, where a State has two or more territorial units in which
different systems of law apply to matrimonial property regimes, any reference
to the national law of such a State shall be construed as referring to the
system determined by the rules in force in that State.
In the absence
of such rules, a reference to the State of which a spouse is a national shall
be construed, for the purposes of sub-paragraph 1 of the second paragraph of
Article 3 and sub-paragraph 1 of the second paragraph of Article 6, as
referring to the territorial unit where that spouse had his or her last
habitual residence; and, for the purposes of the second paragraph of Article 4,
a reference to the State of the common nationality of the spouses shall be
construed as referring to the last territorial unit, if any, where each has had
a habitual residence.
Article 17
For the purposes
of the Convention, where a State has two or more territorial units in which
different systems of law apply to matrimonial property regimes, any reference
to habitual residence in that State shall be construed as referring to habitual
residence in a territorial unit of that State.
Article 18
A Contracting
State which has two or more territorial units in which different systems of law
apply to matrimonial property regimes shall not be bound to apply the rules of
the Convention to conflicts between the laws of such units where the law of no
other State is applicable by virtue of the Convention.
Article 19
For the purposes
of the Convention, where a State has two or more legal systems applicable to
the matrimonial property regimes of different categories of persons, any
reference to the law of such State shall be construed as referring to the
system determined by the rules in force in that State.
In the absence
of such rules, the internal law of the State of the common nationality of the
spouses applies under the circumstances referred to in the first paragraph of
Article 4, and the internal law of the State where each has had a habitual
residence continues to apply under the circumstances referred to in
sub-paragraph 2 of the second paragraph of Article 7. In the absence of a
common nationality of the spouses, the third paragraph of Article 4 applies.
Article 20
The Convention
shall not affect any other international instrument containing provisions on
matters governed by this Convention to which a Contracting State is, or
becomes, a Party.
Article 21
The Convention
applies, in each Contracting State, only to spouses who have married or who
designate the law applicable to their matrimonial property regime after the
Convention enters into force for that State.
A Contracting
State may by declaration extend the application of the Convention to other
spouses.
chapter iv -
final clauses
Article 22
The Convention
is open for signature by the States which were Members of the Hague Conference
on Private International Law at the time of its Thirteenth Session.
It shall be
ratified, accepted or approved and the instruments of ratification, acceptance
or approval shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
Article 23
Any other State
may accede to the Convention.
The instrument
of accession shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
Article 24
Any State may,
at the time of signature, ratification, acceptance, approval or accession,
declare that the Convention shall extend to all the territories for the
international relations of which it is responsible, or to one or more of them.
Such a declaration shall take effect at the time the Convention enters into
force for that State.
Such
declaration, as well as any subsequent extension, shall be notified to the
Ministry of Foreign Affairs of the Netherlands.
Article 25
A Contracting
State which has two or more territorial units in which different systems of law
apply to matrimonial property regimes may, at the time of signature,
ratification, acceptance, approval or accession, declare that the Convention
shall apply to all its territorial units or only to one or more of them, and
may extend its declaration at any time thereafter.
These
declarations shall be notified to the Ministry of Foreign Affairs of the
Netherlands, and shall state expressly the territorial unit to which the
Convention applies.
Article 26
A Contracting
State having at the date of the entry into force of the Convention for that
State a complex system of national allegiance may specify from time to time by
declaration how a reference to its national law shall be construed for the
purposes of the Convention.
Article 27
No reservation
to the Convention shall be permitted.
Article 28
Any Contracting
State desiring to make one of the declarations envisaged by Article 5, the
fourth paragraph of Article 9, Article 21 or Article 26 shall notify such
declaration to the Ministry of Foreign Affairs of the Netherlands.
Notice shall be
given in the same manner of any modification or withdrawal of such a
declaration.
Article 29
The Convention
shall enter into force on the first day of the third calendar month after the
deposit of the third instrument of ratification, acceptance, approval or
accession referred to in Articles 22 and 23.
Thereafter the
Convention shall enter into force -
(1) for
each State ratifying, accepting, approving or acceding to it subsequently, on
the first day of the third calendar month after the deposit of its instrument
of ratification, acceptance, approval or accession;
(2) for a territory to which the Convention has been extended in
conformity with Article 24, on the first day of the third calendar month after
the notification referred to in that Article.
Article 30
The Convention
shall remain in force for five years from the date of its entry into force in
accordance with the first paragraph of Article 29, even for States which
subsequently have ratified, accepted, approved it or acceded to it.
If there has
been no denunciation, it shall be renewed tacitly every five years.
Any denunciation
shall be notified to the Ministry of Foreign Affairs of the Netherlands, at
least six months before the expiry of the five year period. It may be limited
to certain of the territories or territorial units to which the Convention
applies.
The denunciation
shall have effect only as regards the State which has notified it. The
Convention shall remain in force for the other Contracting States.
Article 31
The Ministry of
Foreign Affairs of the Netherlands shall notify the States Members of the
Conference, and the States which have acceded in accordance with Article 23, of
the following -
(1) the
signatures and ratifications, acceptances and approvals referred to in Article
22;
(2) the accessions referred to in Article 23;
(3) the date on which the Convention enters into force in accordance with
Article 29;
(4) the extensions referred to in Article 24;
(5) the denunciations referred to in Article 30;
(6) the declarations referred to in Articles 25, 26 and 28.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the 14th day of March, 1978, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Netherlands, and of which a certified
copy shall be sent, through the diplomatic channel, to each of the States
Members of the Hague Conference on Private International Law at the date of its
Thirteenth Session.
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