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“Only through cooperation, trust and mutual understanding among different Law systems, problems can be solved”

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“Only through cooperation, trust and mutual understanding among different Law systems, problems can be solved”

05/11/2018

The International Task Force Civil Law-Common Law (ITF) meetings are very useful to compare legal systems on cross borders matters that affects the daily works of legal professionals such as notaries. 

This last October 25, the ITF met in Budapest to deal with the topic of “Matrimonial Property Regimes with Reference to the EU Regulations 2016/1103/1104”. The reunion gathered delegates from 23 countries and speakers from the Netherlands, Belgium, Hungary, Germany (for Civil Law practitioners) and England and Wales, Scotland and Australia (for Common Law practitioners). 

It was stressed how the EU Regulations goal is to achieve predictability, legal certainty, and ultimately, decision harmony within all EU countries. Yet, the participants emphasized that marriage is a very sensitive topic to regulate because it has various applications and understandings (i.e. existence or not of a matrimonial property regime, recognition of homosexual marriage, etc.). 

Some speakers reminded that the EU Regulations are meant to be universal, which means that the 18 participating EU member-states, will apply the Regulations to the population of these countries but also to non-EU and EU non-participating countries citizens. However, it is as for now, unpredictable to say if those Regulations will be recognized in the non-participating states, notably regarding immoveable properties. 

It was also pointed out the difficulties for practitioners in cross border marriage issues, having on one side a person from a participating country and on the other an English or Welsh citizen, as in this Law system there is no matrimonial regime. This is why it is essential that England and Wales practitioners understand what a matrimonial property regime is. On the other hand, it is as well important that Civil Law notaries realize the absence of such a default matrimonial regime, and avoid making gross mistakes when dealing with Common Law systems.

Many highlights can be underscored from the interventions: from the assurance that the regulations are a big step forward for the 18 participating countries, to the awareness than more than 16 million couples live outside of their nationality country and therefore cross-border issues are and will be very frequent. The absence of a matrimonial regime can represent as well a regime; and finally, some Common Law countries have such a complex jurisdiction system that only national expert are able to advise on cross border issues. Marc GELEIJNS, President of the ITF, eventually concluded: “All the presentations made it vibrant that only through cooperation, trust and mutual understanding between jurisdictions, problems can be solved; and that a thorough perception of these new EU Regulations is necessary for us all to properly advise our clients from the entire world.”

 

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