1 Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
In accordance with Article 2590 of the Civil Code, the law applicable to the spouses’ matrimonial property is the law chosen by them. If no choice is made in this respect, the matrimonial property is governed by the law applicable to the general effects of marriage. Article 2589 of the Civil Code provides that the general effects of marriage are governed by the law of the spouses’ common habitual residence, and if the spouses have no common habitual residence, by the law of the country of the spouses’ common nationality. If the spouses have no common nationality either, the law of the state on whose territory the marriage was celebrated applies. However, it is worth noting that, by way of exception from such provisions, the spouses’ rights over the family dwelling and the regime of instruments relating to such dwelling are governed by the law of the place where the dwelling is located. Romania is not a signatory to the Hague Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes.
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?
Spouses have the possibility to choose the law applicable to their matrimonial regime. Their choice is limited in accordance with Article 2590 paragraph 2 of the Civil Code to: the law of the state on whose territory one of the spouses has his/her habitual residence on the date when the choice is made, the law of the state whose nationality either of the spouses has on the date when the choice is made, or the law of the state where the spouses establish their first common habitual residence after the celebration of marriage. The choice-of-law agreement may be concluded before the celebration of the marriage, at the same time as the celebration of the marriage or during the marriage. In terms of form, the agreement has to fulfil the conditions provided by the law chosen as applicable or by the law of the place where the agreement is concluded. However, a document signed and dated by both spouses is mandatory in all cases. Unless otherwise agreed by the spouses, the newly chosen law produces its effects only for the future. It may not harm any third parties’ rights.
