Plotting a course through matrimonial issues and across international borders can be complex at the best of times, especially when dealing with legal systems that differ significantly in their approach. Your ship might cast off in the right direction, but where is the final destination? This complexity is particularly evident when considering couples who move from the safe harbour of European jurisdictions that enable the election of matrimonial property regimes, to the broad discretion of the English courts.
Election of Matrimonial Property Regimes
In a lot of European states, matrimonial property regimes play a crucial role in determining how assets and liabilities are managed and divided in the event of divorce or separation. In an increasingly globalised world, couples with connections to multiple countries may elect matrimonial property regimes governed by the laws of specific European countries.
It is important to note that these are different from nuptial agreements, which are longer and more detailed contractual documents. For example, before or shortly after marriage in Italy, a couple will usually elect from either Communione dei Beni (the default) or Separazione dei Beni to determine both pre- and post-marital asset ownership. In Germany, the option to elect a regime known as "Güterstand," takes the form of Gütertrennung (Separation of Property) Zugewinngemeinschaft (Community of Accrual) or Gütergemeinschaft (Community of Property). There are other iterations within those countries and similar versions in other countries too. Either way, a local lawyer should advise you on the formalities and options, but those formalities are, by any view, not overly cumbersome.
The choice between these regimes often depends on various factors, including the financial situation of the spouses, their respective assets, and their intentions regarding asset management and division. Some couples may prefer the community of property regime for its equal sharing of assets, while others may opt for the separation of property regime to maintain autonomy over their own finances. Once the election is made, it provides certainty for the couples approaching a separation too.
Relocation to England
What will surprise a lot of married couples moving England is that there is no such ability to elect a property regime in England in the same, simple manner. The Married Women’s Property Act 1882 made clear that any attempt for one party of a marriage to gain ownership of the others by virtue of the marriage is impermissible. Only the Family Court can then redistribute assets that belong to a person on the breakdown of a marriage, pursuant to the Matrimonial Causes Act 1973 (“MCA”). As matrimonial property regimes will very rarely meet the threshold to displace the court’s exceptionally broad discretion to ensure fairness on separation, they will become just one of the many non-binding factors the Family Court will need to consider.
