Books Developments in PIL Scholarship

Registered Partnerships in the EU – A Spanish Perspective on Regulation 2016/1104

Pablo Quinzá Redondo, Lecturer of Private International Law at the University of Valencia, is the author of this monograph published in 2022 by Tirant Lo Blanch. The author has kindly provided the following abstract.

The European regulations concerning the property consequences of marriages and registered partnerships (Regulations (EU) 2016/1103 and 2016/1104, respectively) entered into application four years ago. Since then, many valuable research studies have been published. Most of them have departed from the provisions of the Regulation (EU) 2016/1103 to explain the Regulation (EU) 2016/1104, given their similarities -both regulations were adopted as a package-. However, not many of them have followed the opposite approach or have analyzed the later instrument independently. Alongside this, in the Spanish legal doctrine, only a few research studies have been focused on the application in Spain and/or to Spanish formalized partnerships under the Regulation (EU) 2016/1104. Pablo Quinzá saw in those circumstances an opportunity for writing the book Uniones registradas en la Unión Europea. El Reglamento (UE) nº 2016/1104 en perspectiva española.

The monograph is divided in three parts, preceded by an introduction, following a classical PIL structure.

In the introductory chapter, the author draws a general overview of the phenomenon of non-matrimonial unions in the European Union, focusing in particular on formalized partnerships and their patrimonial consequences. This substantive-law perspective will facilitate the proper understanding of the content of the Regulation (EU) 2016/1104 at a later stage.

In many jurisdictions, formalized partnerships were conceived and regulated as a functional equivalent to marriage for same-sex couples; in others, as an alternative to marriage open to all couples. In Spain, the regulation of formalized relationships emerged at a time when same-sex marriage was not yet allowed. Besides, it did with notable differences with respect to the legal framework institution for couples, marriage. This general statement, however, should be spelled out in the Spanish reality. There is no Spanish state law dealing with formalized partnerships; legislation have been enacted by the Autonomous Communities Parliaments, with a heterogeneous content -e.g., different requirements to access to the legal institution or different provisions in respect to their patrimonial consequences-. These divergences are per se a source of complexity. The situation is even trickier due to the fact that the Spanish Constitutional Court has declared some regional provisions unconstitutional, while, as of today, very similar ones remain ‘untouched’. For example, the judgment of the Spanish Constitutional Court 93/2013, of 23 April, declared Article 2.3 of the Navarre Act on formalized relationships (Foral Law 6/2000) unconstitutional. In the Court’s view, requiring Navarre civil neighborhood (vecindad civil) of one of the partners is, in fact, a conflict-of-laws rule; per Article 149.1.8 of the Spanish Constitution, only the Spanish lawmaker (as opposed to the regional one) has regulatory competence in conflict of law matters. Meanwhile, other regional laws also make registration as a couple conditional upon the vecindad civil of one of the partners. This is the case, to a greater or lesser degree, of some provisions of the laws dealing with formalized partnerships in the Basque Country, Galicia or the Balearic Islands. Until they are not declared unconstitutional, they continue being applicable in their respective territories.

In light of the foregoing, the introduction to the monograph is essential to understand that the problems of application of the Regulation (EU) 2016/1104 in Spain are strictly connected with the fragmentary regulation of formalized relationships and the internal constitutional problems.

The first chapter of the book addresses the Regulation’s scope of application from four perspectives: substantive, geographical, personal and temporal. The first two approaches are the most controversial ones. From the Spanish point of view, it is unclear which of the formalized partnerships foreseen under regional law correspond to the autonomous definition provided for in Article 3.1.a). In the author’s view, all registered formalized partnerships should fall under the scope of application of the Regulation, regardless of the constitutive or declarative effect of the registration according to regional law. A different opinion would lead to unbearable consequences: only some Spanish formalized partnerships would be covered by the Regulation; other would remain outside. It would not be surprising if, sooner rather than later, a preliminary ruling is requested from the CJEU in this subject matter.

Chapter two is devoted to international jurisdiction rules. This is one of the most complicated parts of the Regulation, since some provisions refer to jurisdictional rules enacted elsewhere (e.g., to Regulation (EU) 650/2012), while in other cases the provisions of the law applicable of the Regulation itself are invoked. For the sake of clarity, a division is made following the main subject areas provided in the Regulation: jurisdiction in the event of the death of one of the partners; jurisdiction in cases of dissolution or annulment of the registered partnership; jurisdiction in other cases (including choice of forum agreements and implicit submission) and alternative jurisdiction. From the Spanish perspective, it is important to bear in mind that the mere dissolution or annulment of Spanish formalized partnerships does not require a judicial procedure. This probably explains -but not justifies- the absence of jurisdictional rules in the Spanish legal system regarding the dissolution or annulment of formalized partnerships. By way of consequence, difficulties in the application of Article 5 of the Regulation in Spain are to be expected.

Chapter three focuses on the determination of the law applicable to the property consequences of registered partnerships under the rules of the regulation. At a first stage, both choice of law agreements and objective connecting point are studied. Later, the application of Spanish law under the conflict-of-law rules of the Regulation is stress-tested, tackling the most relevant situations in which clarification of the applicable regional law will be needed. It is important to bear in mind that in Spain there are not ‘internal conflict-of-laws’ for the dissolution or annulment of formalized partnerships -in terms of Article 33.1 of the Regulation-, so the application of one regional law or another would depend on the subsidiary connections of Article 33.2. Nevertheless, as mentioned before, as of today the validity itself of some regional laws is a very controversial topic, where the constitutional perspective and the solutions of the jurisprudence should be taking into account.

In short, this book raises, and proposes solutions to, the legal problems arising from the application of the Regulation (EU) 2016/1104, from the Spanish legal system point of view. An issue which is not only relevant for Spanish legal operators, but also for foreign ones, as long as a member of the couple is connected with the Spanish legal system or Spanish law is applicable.