Norway’s Proposed Cohabitation Act: A Free Europass for Cohabitees?

This post examines the private international law aspects of the proposed Norwegian Cohabitation Act and argues that Norwegian cohabitees may have an unexpected jurisdictional advantage in international disputes. At the same time, the proposal’s unilateral and Norway-centric approach to applicable law raises concerns about predictability and consistency in international cases.

Under Section 26 of the proposed Cohabitation Act, Norwegian courts would have jurisdiction where both cohabitees are or have been habitually resident in Norway, where the defendant is domiciled in Norway, or where the applicant is a Norwegian national who cannot, because of their nationality, bring proceedings in the country of their habitual residence. These rules give way to international conventions.

Of central importance in this respect is the 2007 Lugano Convention. The Convention closely follows the Brussels I Regulation (44/2001), but the amendments introduced by the Brussels I Bis Regulation (1215/2012) have not been incorporated into it. For property disputes between cohabitees, this difference is important.

Article 1(2)(a) in the Lugano Convention, like the corresponding article in the Brussels I Regulation excluded only “rights in property arising out of a matrimonial relationship”. The wording of the exception in Article 1(2)(a) of the Brussels I bis Regulation goes further. It also excludes rights arising from “a relationship deemed by the law applicable to such relationship to have comparable effects to marriage”.

Beyond this exclusion in the Brussels I bis Regulation, cohabitation is covered by neither the Matrimonial Property Regulation (2016/1103) nor the corresponding Regulation on the property consequences of registered partnerships (2016/1104). Hence, private international law issues concerning cohabitation are therefore largely left to the Member States. The Swedish legislator, for example, has assumed that cohabitees fall outside the relevant EU instruments (Prop. 2018/19:50, p. 205). Sweden has consequently enacted autonomous rules on jurisdiction and applicable law for international cohabitation disputes in Chapter 5 of the Swedish Act supplementing Regulation 2016/1103.

However, Norwegian cohabitation relations may enjoy what perhaps could be called a free Europass through the Lugano Convention, as it does not exclude relationships having “comparable effects to marriage” as the Brussels I bis Regulation does. The Norwegian official report considers that property disputes between cohabitees fall within the Convention, relying on the Court of Justice’s judgment in Weil, C-361/18 (see NOU 2025:6, pp. 41 and 161 ff).

In Weil, the Court held that an action concerning the dissolution of property relations arising from an unregistered partnership fell within the Brussels I Regulation.

As the Lugano Convention retains the old wording, property disputes arising from cohabitation should therefore fall within its scope. Hence, the jurisdiction rules of the Lugano Convention will be of great importance for international cohabitation disputes in Norway and Norwegian judgments in such disputes may circulate throughout the Lugano area.

What Law Will Be Applied?

Section 26 of the proposed Norwegian Cohabitition Act contains no classic bilateral conflict-of-laws rule. Instead, it states unilaterally when the Norwegian Act applies. The Act would apply where the cohabitees are habitually resident in Norway when proceedings are commenced. If their cohabitation has already ended, Norwegian law would apply if the cohabitees had their common habitual residence in Norway at the time of its dissolution.

As arguments for deviating from general conflict-of-laws principles, the Norwegian official report argues that cohabitees’ property relations may be largely unregulated abroad. It also claims that the Norwegian Act would be more protective than the legislation of almost any other country. On that basis, it considers that the Act should have a broader international scope than the rules applying to spouses.

Neither the proposed Act nor the official report says whether cohabitees may choose the applicable law. However, the proposed Act is waivable, so the parties may regulate their financial relations by agreement. But does that mean that cohabitees also may choose the law applicable to their cohabitation agreement?

Comment

From an EU private international law perspective, including within the Lugano area, it is unsatisfactory that cohabitation relationships are not governed by common and predictable rules on jurisdiction and applicable law. The discrepancy between the material scopes of the Lugano Convention and the Brussels I bis Regulation may prove particularly problematic.

Suppose, for example, that a Norwegian cohabiting couple includes a forum selection clause designating Norwegian courts in their cohabitation agreement before moving to an EU Member State. If a dispute subsequently arises there, the courts of that Member State must determine whether the jurisdiction clause is governed by the Brussels I bis Regulation or the Lugano Convention. Although the general rule based on the defendant’s domicile might initially appear to favour the Brussels I bis Regulation, the relationship between the two instruments is governed by their specific conflict provisions.

Under Article 73(1) of the Brussels I bis Regulation, read together with Article 64(2)(a) of the Lugano Convention, the latter applies where Article 23 of the Convention confers jurisdiction on the courts of a Lugano State that is not bound by the Brussels I bis Regulation. Provided that the conditions on forum selection clauses in Article 23 of the Lugano Convention are satisfied, the parties’ subsequent acquisition of domicile in an EU Member State does not, in itself, displace the Lugano Convention. Norwegian cohabitees may therefore enjoy a “free Europass” through the Lugano Convention as their choice of a Norwegian forum may remain effective after they move to the European Union, and a resulting Norwegian judgment may circulate throughout the Lugano area.

Leaving jurisdiction, also the somewhat Norway-centric conflict-of-laws rule of the proposed Cohabitation Act deserves some attention. It is quite contrary to the fundamental rationale of private international law to assume that Norwegian law necessarily offers the best protection without paying attention to the parties’ connections to other countries. Hence, the unilateral conflict-of-laws approach taken in the proposed  Cohabitation Act is regrettable from a private international law perspective as it undermines the goal of uniform decisions and explicitly values Norwegian law as better than other countries’ laws.