CJEU on the Distinction between Matrimonial Property Regimes and Rights in rem

The author of this post is Christopher Reibetanz who is a postdoc and senior research fellow at the Max Planck Institute for Comparative and International Private Law.

In Duftošek (C-300/25), the CJEU ruled for the first time on the Matrimonial Property Regulation (Regulation (EU) 2016/1103). The decision has important implications for the scope of application of the Matrimonial Property Regulation. A characterization issue is at the core of the decision: whether the dissolution of co-ownership of immovable property held by former spouses who had agreed to a separate property regime is a matrimonial property matter or an issue concerning rights in rem.

Background

The parties married in 2015 and agreed to a separate property regime under Czech law. During their marriage, they jointly acquired an apartment in Paris. Following their divorce, a dispute concerning the apartment arose before Czech courts.

A central issue in the Czech proceedings was whether the dispute about the apartment in Paris was to be characterized as a matter of matrimonial property law under the Matrimonial Property Regulation or whether it was a dispute regarding immovable property for which the exclusive jurisdiction rule in Article 24 Brussels Ibis Regulation applies.

After diverging outcomes in the lower courts, the Czech Supreme Court asked the CJEU how the issue should be characterized.

The CJEU’s Decision

The CJEU held that the Matrimonial Property Regulation applies, ultimately leading to the jurisdiction of the Czech courts. The Court pointed out that an autonomous interpretation of the concept of ‘matrimonial property regime’ under Article 3(1)(a) Matrimonial Property Regulation is necessary (paras 34–35). An interpretation based on the national law of the Member States would endanger the uniform application of the Regulation.

According to the CJEU, in light of the wording of Article 1(1) and, in particular, Article 3(1)(a) of the Regulation, relating to ‘a set’ of rules, a broad understanding of the concept of ‘matrimonial property regime’ is appropriate.

With regard to the systematic context, the Court relied on recital 18, which includes liquidation of the regime following a separation in the Regulation’s scope (paras 38–39). More importantly, the Court interpreted the exclusion of ‘the nature of rights in rem relating to a property’ in Article 1(2)(g) narrowly. As recital 24 shows, this exclusion merely serves to protect the numerus clausus of rights in rem known under national law, rather than excluding all actions connected with such rights (para 42). An action for the liquidation and division of co-ownership may result in the transfer of a right in rem, but it does not concern the nature of that right (para 43).

This narrow reading of Article 1(2)(g) shapes the relationship with the Brussels Ibis Regulation. In Komu (C-605/14), the Court had held that an action for the termination of co-ownership of immovable property situated in Spain, brought before a Finnish court by co-owners residing in Finland, falls within the exclusive jurisdiction of the courts of the Member State in which the property is situated (Article 24(1) Brussels Ibis Regulation). Had the dispute in Duftošek been characterized as concerning rights in rem, the French courts would thus have had exclusive jurisdiction. In effect, Duftošek carves co-ownership between (former) spouses out of the Komu line of case law: since the exclusion of ‘matrimonial property regimes’ in Article 1(2)(a) Brussels Ibis Regulation is to be interpreted consistently with the Matrimonial Property Regulation (paras 44–45 of the Duftošek judgment), such disputes do not reach Article 24(1) Brussels Ibis Regulation in the first place.

Furthermore, the Court drew on its earlier case law on the concept of ‘matrimonial property regimes’ under the Brussels Convention and the Brussels I Regulation (paras 44–49), especially the de Cavel (143/78) case. This case concerned the exclusion regarding ‘rights in property arising out of a matrimonial relationship’ (Article 1(2)(1) Brussels Convention). The Court had held that

“the term [property arising out of a matrimonial relationship] includes […] any proprietary relationships resulting directly from the matrimonial relationship, or the dissolution thereof” (case 143/78, para 7).

However, the ‘directness’ criterion is vague. When does, e.g., a contract between (former) spouses result ‘directly’ from their matrimonial relationship? Is a strict temporal perspective appropriate, distinguishing, for instance, according to whether the property was acquired before or during the marriage or after its dissolution? Or do all the circumstances have to be considered?

In Iliev (C-67/17), the CJEU had interpreted ‘matrimonial property regime’ broadly to include co-ownership arising from a statutory community of property, without clarifying the ‘directness’ criterion.

In Duftošek, the CJEU extended Iliev to property acquired under a separate property regime, finding that the situation was characterized by the fact that the co-ownership ‘arose’ in the course of the marriage, leading to a sufficiently ‘direct’ connection to the marriage (para 56). According to the Court, this broad understanding of ‘matrimonial property regime’ promotes simplification and predictability by consolidating claims regarding immovable property in one jurisdiction under the Matrimonial Property Regulation (para 54).

The CJEU held that the timing of the action for dissolution of the co-ownership is irrelevant (para 59). Instead, the key question is whether the chosen separate property regime ‘directly led’ to the spouses’ co-ownership at acquisition (para 57).

Assessment

The CJEU had to tackle a complex issue of interpretation and coordination. On its face, the case concerns only a question of horizontal delineation between the Brussels Ibis Regulation and the Matrimonial Property Regulation. However, the issue is equally relevant for the applicable law, where a problem of vertical delineation between European and national PIL arises. Either the dispute is characterized as a matrimonial property matter and the Matrimonial Property Regulation applies, or it concerns a right in rem, leading to the application of national PIL and, by virtue of the lex situs rule, of French law. The CJEU thus dealt with a multidimensional problem of characterization between matrimonial property matters and matters regarding rights in rem, with consequences for both jurisdiction and the applicable law. The decision is, of course, also relevant for the sister Regulation on the Property Consequences of Registered Partnerships (Regulation (EU) 2016/1104).

The argument based on the wording of Article 3(1)(a) Matrimonial Property Regulation works better in other language versions of the Regulation than in the English one. While ‘a set’ of rules appears to be rather neutral, the French and German versions, for instance, indicate that all related rules are covered (‘l’ensemble des règles’ or ‘sämtliche vermögensrechtlichen Regelungen’).

The CJEU considered the impact of the matrimonial property relationship between the spouses on the legal nature of the co-ownership at the time of the acquisition to be decisive. It is convincing that the CJEU did not base the distinction on the legal basis for the claim, as the referring court had implied when it pointed out that the action for liquidation of the co-ownership was based on general civil law, not on matrimonial property law. Such an argument would be circular: the applicable law has yet to be determined.

However, the CJEU’s teleological reasoning in paras 56–57 is not entirely convincing. A separate property regime is characterized precisely by the absence of any community of property; it cannot, as such, ‘directly lead’ to co-ownership. The co-ownership arises from the spouses’ decision to acquire the property jointly – and not from the matrimonial property regime. If the mere fact that the co-ownership arose during a marriage subject to a separate property regime were sufficient, the ‘directness’ criterion would not have any delimiting function; virtually every joint acquisition by spouses would fall within the scope of the Matrimonial Property Regulation.

Interestingly, the facts of the case would have offered a more solid basis for the Court’s conclusion. According to the Advocate General, the spouses had not only noted their separate property regime in the deed of sale, but had also referred, by way of derogation from the French rules on the liquidation of co-ownership, to Article 1469(3) of the French Civil Code, which governs the calculation of récompenses upon the liquidation of the statutory community of property (AG Opinion, fn. 8). Hence, the spouses themselves subjected their co-ownership to rules of matrimonial property law. This contractual overlay establishes a link between the co-ownership and the marital relationship. The CJEU, however, did not take up this circumstance. Focusing on whether the spouses themselves have shaped their co-ownership by reference to matrimonial property rules would have been more convincing than an imprecise reference to the separate property regime.

Considering that the case is relevant not only for the purpose of jurisdiction but also for the determination of the applicable law, the decision may reflect a certain force d’attraction of the harmonized vis-à-vis the unharmonized PIL. In Mahnkopf (C-558/16), the Court had interpreted the concept of succession broadly, subjecting the surviving spouse’s increased statutory share under § 1371(1) of the German Civil Code (BGB) to the Succession Regulation rather than to the then still national matrimonial property PIL. In Duftošek, the Matrimonial Property Regulation itself benefits from such a broad approach vis-à-vis the national lex situs rule.

Finally, the CJEU explicitly left open one important issue that the referring court had raised: whether the characterization would have been the same if there had been one or more third parties among the co-owners (cf. para 60). If this were the case, the concentration of jurisdiction pursued by the Matrimonial Property Regulation might conflict with the third parties’ legitimate interest in a foreseeable forum and applicable law. Whether, in such cases, the Court would revert to the Komu approach and the exclusive jurisdiction of the courts of the Member State in which the property is situated remains an open question.

Overall, Duftošek strengthens the Matrimonial Property Regulation’s claim to govern the property relationships between (former) spouses comprehensively. However, the boundary between matrimonial property law and the general law of property and obligations will remain blurred as long as no workable test of ‘directness’ has been established.