In a time when Europe is experiencing economic crisis for several years and developed an identity crisis marked by the boost of Eurosceptics at the recent European elections, it is somewhat surprising that one of the major advances of European Construction relates to family law, drawn to a value of safe refuge.
And for good reason, European families exist and the numbers speak for themselves: there are approximately 350,000 marriages between spouses from two different countries celebrated each year within Europe, 450,000 international successions and 170,000 divorces that are pronounced. These past years, family law has been intensively developed within an ongoing process of European harmonization essentially directed towards rules of procedures and forms of private international law, bringing practitioners such as civil law notaries and judges to apply a foreign law which they are unfamiliar, or totally ignorant. For instance, in a case involving the dissolution of a couple, marital consequences are accentuated if there is a significant discrepancy in the distribution of matrimonial property according to the spouses' country of origin and therefore, in practice, difficulties arise when attempting to solve issues that are raised.
In that context, France and Germany, two pillar states of the European construction, have worked together with the common goal of increasing the legal security of mixed married couples and have signed the agreement of 4 February 2010 that inaugurates the first Common Optional Matrimonial Property Regime (hereafter COMPR). They have selected the community of accrued gains which is already known in Germany as a default regime and in France as a contractual regime to honor this first common substantive law between two states. This is a major legal advance in international family law because the originality of the regime from which it is composed, works and is liquidated under the same rules on each side of the Rhine. The scope is large in order to assure maximum accessibility. Indeed, according to the current French and German private International Law rules in matters of matrimonial property regime, the COMPR can be chosen by French or German citizens, but also by a spouse who has their habitual residence in France or in Germany, and by those who own property in either of these states through a marriage contract that place the civil law notaries in the heart of its implementation. The message is clear: This is not only confined to French or German nationals, this is accessible to every citizen involved with France and Germany today (and to other countries in the future).
For those who are unfamiliar with the community of accrued gains regime, its operation is very simple: it works as a separation of property during the regime with the corollary that each spouse retains control, manage, use and dispose of his or her patrimony. At the time of the dissolution, the community of accrued gains plays its full role, because it retains a community approach. Each spouses' initial and final assets are compared to fix the accrued gains of the spouses; and if one spouse exceeds the accrued gains of the other, the other spouse can claim half of the surplus as debt on the accrued gains. The spouses finally share the gains equally. The Franco-German agreement establishes the rules to set up and organize the composition and the evaluation of the initial and final assets, and the calculation of the debt on accrued gains. However, these rules are not set in stone because the spouses can derogate in their contract to each other, the freedom of contract.
Indeed, in a global perspective, the COMPR has several advantages and is a real opportunity for all international couples that are living outside of their country of origin. The regime associates separation of property with community, which is a real gain for spouses. In regard to the rights of their creditors first by protecting the spouse's patrimony during the existence of such regime because the obligations incurred by one spouse can be enforced against his property only. And second, between the spouses themselves when the debt on accrued gains plays a kind of monetary compensation while one spouse has worked for the other one without being paid. It might also design a route towards legal stability and recognition of same-sex married couples that are not recognized in Germany. German law equates a same-sex marriage performed in other jurisdiction to registered life partnership (Zugewinngemeinschaft) including the matrimonial property regime which cannot exceed the effects of the German registered partnership of community of accrued gains. By opting for the COMPR, it will ensure same-sex married couples a way for their assets to be treated equally whether they are located in France or in Germany.
The agreement was implemented a year ago in France and Germany, but there needs to be stronger communication between couples and professionals. European couples need answers of cooperation between states, and it is up to professionals to respond to such a request. The main advantage of the COMPR is certainly the possibility for all bi-national couples to opt for a matrimonial property regime that works under the same rules with an official translation in different states, thus limiting the risks of misinterpretation of the provisions.
Looking to the future, the COMPR is a step towards the harmonization of substantive rules in European family law to simplify the daily lives of couples. This is the beginning of a new era because the agreement is not closed to France and Germany alone: other member states can accede the agreement by accession, and we know today that Luxembourg, Hungary and Bulgaria have expressed a clear wish to accede the agreement. The COMPR may also serve as a model for other type of common optional matrimonial property regime, or other types of common substantive rules related to family law because the harmonization of substantive rules is key to the success of an integrated Europe. The COMPR will secure the legal relationship of couples in Europe for sure, and will reinforce the feeling of a European citizenship by appropriating a device known and appreciated by all.
Not without displeasing those far-right European parliamentarians recently elected, harmonization in Europe is needed and the harmonization of substantive rules is possible when made by compromise and soft law, as demonstrated by the COMPR. As such, the Franco-German agreement must stay a compromise between states and consequently, the text will need to be amended in the interest of compromise when other member states accede. The goal is to build a common legal culture and not to impose just one vision.
It is therefore important to promote this device now through significant communications to European citizens and through strong professional trainings, both of which are necessary to change the current European mentality and to show that harmonization is achievable. We need to continue nurturing European integration because the European Union is not an economic union only, it is also the union of thousands of people who themselves are European families.
Angelique Devaux is a French Qualified Attorney (Diplomee Notaire) and has an LLM from the Indiana University, Robert H. McKinney School of Law.
Suggested citation: Angelique Devaux, Harmonization of Law is the Key in Europe, JURIST-Hotline, June 17, 2014, http://jurist.org/hotline/2014/june/angelique-devaux-harmonization-law-europe.php.
This article was prepared for publication by Jason Kellam, a Section Editor with JURIST's Commentary service's. Please direct any questions or comments to him at firstname.lastname@example.org