What's Wrong with Article 22? The Unsolved Mysteries of Choice of Law for Matrimonial Property

The twin EU Regulations on Matrimonial Property will become fully effective on January 29, 2019. These new EU instruments confirm that party autonomy is one of the main principles of EU private international law. The choice of law is the first provision in the chapter on applicable law. Article 22 of the two Regulations makes it possible for spouses and partners to choose the law applicable to their relations. For practitioners, and notaries in particular, the existence of common choice of law rules and, more importantly the confirmation that the relationships between spouses or partners is governed by the law they have chosen, brings about a welcome certainty. It may therefore be expected that the coming into force of the two Regulations will lead to an increase in the use of choice of law.

The unification of the conflict of laws rules within the EU does not, however, solve all questions. This paper identifies and reviews potential shortcomings of the Regulations in relation to party autonomy. Four issues have been selected, which reveal the fragility of party autonomy under the twin matrimonial property Regulations. The weak spots include the silence kept by the EU legislator on tacit choice of law, the absence of any consideration for old choice of law provisions and the lack of a European mechanism dealing with the consent of parties. Some of these shortcomings may be remedied by practice. For other issues, one shall have to wait until the review of the Regulation which is scheduled to take place in 2027.