Matrimonial Property Regimes: What are they?

what is a matrimonial property regime?

In today’s modern world, international relationships and marriages are more common than ever. In our work, we see many separating couples that have a foreign aspect to their divorce. This may include working or living abroad, owning assets in different countries, or even holding multiple citizenships. 

In some jurisdictions, couples getting married automatically become subject to what is called a matrimonial property regime. This is a set of legal rules that regulates the financial relations between spouses, governing how their assets and debts are owned and distributed over the course of the marriage and in the event of death or divorce.

These regimes impose complex rules for the joint ownership of property by spouses, which can significantly affect divorce as well as tax and succession planning.  

Each jurisdiction has a differing ideology on marriage and how it should affect asset ownership. Some countries, such as Germany and France, allow each couple to choose what regime will apply to them.  

If you are an international individual considering or seeking a divorce in England and Wales, contact Vardags for a free initial consultation with one of our expert divorce solicitors.

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the types of matrimonial property regimes

Broadly speaking, there are four categories of regime:

1. Separation of Property: 

The first matrimonial property regime is the separation of property. In jurisdictions that follow this regime, the property acquired before and during the marriage is each spouse’s own separate property and each person has full freedom of disposition, in both their lifetime and death. 

The separation of property regime applies in many ‘common law’ countries such as Australia, New Zealand, India and 41 out of the 50 states in the USA. 

2. Full Community of Property: 

The second regime is the full community of property. Under this regime, all assets acquired before and during a marriage will be treated as held jointly by the spouses, and this may include property inherited by one of them. 

The full community of property regime is rarely imposed as a default option. However, many countries offer this regime as an option that couples can elect to apply to their marriage, such as France. 

3. Deferred Community of Property: 

The deferred community of property regime means that every asset is treated as separately owned during the marriage, but a spouse acquires joint ownership rights in their partner’s property on death or divorce. 

As a result, this regime is only relevant when the marriage ends. 

The Scandinavian countries, as well as some others, have adopted this regime as the default.  

3. Community of Acquisitions: 

The final regime is the community of acquisitions. Under this, assets acquired by each spouse during the marriage are treated as jointly owned, but the assets acquired prior or inherited at any time are separately owned. 

This is the default regime in many European countries such as France and parts of Spain, as well as Russia and China. 

Why is this relevant in divorce? 

When multiple countries have jurisdiction over a divorce, the primary concern shifts from which country will grant the divorce to which country will determine the financial settlement. It is inevitable that a conflict arises where couples have ties to more than one country, and in-depth consideration must be given. 

In HNW and UHNW divorce cases, it is essential that financial settlement proceedings occur in the jurisdiction that most benefits your position. For financially weaker spouses, this jurisdiction is often England and Wales.  

The treatment of personal and marital property can vary greatly between the two systems, so it is essential to assess which jurisdiction offers the most favourable financial outcome to your situation, and to act quickly to secure the more beneficial jurisdiction.

The English court has an almost unfettered freedom to redistribute the assets of the parties as it sees fit and fair, regardless of the source or ownership of the assets. As a result, many spouses choose to have their divorce heard in England and Wales.  

matrimonial property regimes in different countries

Matrimonial property regimes are common in many jurisdictions, varying significantly from country to country.

For example, in France, married couples can choose from the matrimonial property regimes available under French law. This does not only affect the division of assets upon divorce, but primarily, upon either party’s death. The chosen regime is considered first before will and intestacy provisions.

England and Wales does not have statutory matrimonial property regimes, with spouses retaining ownership of their own individual assets during the marriage, except for assets which are jointly owned. In the case of divorce, the concept of assets acquired during the marriage being matrimonial, and therefore subject to equal sharing, has evolved from caselaw, primarily the landmark case of White v White.

are matrimonial property regimes the same as prenuptial agreements?

No, a prenuptial agreement sets out what should happen to a couple’s assets in the event of divorce. In contrast, a matrimonial property regime regulates the ownership of a couple’s assets whilst they are married, as well as in the event of death or divorce.