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In 2019, the EU Member States started applying the Matrimonial Property Regulation, which concerns the property regimes of international marriages. This regulation is aimed at helping couples manage their property and divide it in case of divorce or the death of one spouse. One of the main features of this regulation is its openness to the parties’ choice. The parties are enabled – in cases foreseen in the regulation – to grant jurisdiction to the court of a Member State of their choice, as well as to choose the law applicable to their matrimonial property regime. Since this regulation is new and the track record of its application is rather short, the limits of party autonomy allowed under the regulation and its advantages still involve a high degree of uncertainty. This article provides an in-depth analysis of party autonomy as provided for in the Matrimonial Property Regulation. In addition, it scrutinises the issue of party autonomy in the Succession Regulation, which often directly interacts with the Matrimonial Property Regulation.

Unknown Draft of the Matrimonial Property Law that Was Adopted on its Second Reading by the Sub-commission on Matrimonial Property Law of the Codification Commission of the Republic of Poland in 1938–1939: Historical Source Edition One of the most important tasks facing the Codification Commission established in 1919 was to regulate the issue of matrimonial property law. The work of the Commission on that issue, which in essence started with its inauguration, was terminated abruptly in 1920. After a thirteen-year hiatus, the debate resumed and resulted in the draft matrimonial property law of 1937, which was adopted on its first reading by the sub-commission on matrimonial property law. The second reading started on 1 April 1938, however, the effects of the work of the sub-commission were previously unknown. This historical source edition sheds a completely new light on that issue. It contains yet unknown draft regulations (from Art. 1 to Art. 99 of the draft) adopted on second reading of the matrimonial property law in 1938–1939. The publication of this source will therefore be of great importance in the context of further research on the history of family law in interwar Poland.

This study examines the prevalence of marital contracts across marriage cohorts (1990–2019) in Germany. We further investigate the characteristics of spouses who signed a marital contract. Using cross-sectional data from the German Family Panel (pairfam, 2018/19), we employ complementary log–log and multinomial logistic regression models to predict the prevalence and the type of marital contracts. The results show that 5% of all married couples opt out of the default matrimonial property regime by signing a contract in Germany. Differentiating between contract types, most couples either specify a separation of property (40%) or modify the default community of accrued gains (31%). We find an increase in the prevalence of marital contracts across marriage cohorts. The decision to opt out of the default is strongly positively associated with self-employment that often requires the customisation of asset ownership structures within marriage. Married individuals with prior divorce experiences are more likely to opt for the separation of property, indicating that the awareness of the economic consequences of divorce promotes the individualisation of marriage. Our results are in line with the cross-national trend towards customised marriages, although the trend in Germany is less pronounced than in other countries.

This volume offers a cross-period (14th-19th century) European comparison of different property regimes brought into conversation with inheritance patterns and resulting gender-specific negotiations and conflicts.

In both the European Union and the United States, it is a dynamic period for private international law regarding immovable property issues. The predominant approach has been that these issues are governed by the lex rei sitae —that is, the law of the State where the immovable is located. However, through a comparative examination of recent EU Regulations on succession, matrimonial property regimes, and the property consequences of registered partnerships, and of the new Third Restatement of Conflict of Laws project in the United States, this article shows that on both sides of the Atlantic there is a trend toward reducing the scope of the lex rei sitae rule. It explores both the reasons for and the challenges posed by this trend. It also reveals that despite this trend, the lex rei sitae rule nevertheless persists in relation to certain «core» immovable property issues. En el ámbito de la Unión Europea y de Estados Unidos, el Derecho internacional privado en materia de bienes inmuebles está en transformación. Hasta el momento, la regla general ha sido que la lex rei sitae, esto es, la ley del país en el que el bien inmueble se localiza, rige este sector material. Sin embargo, desde un análisis en perspectiva comparada de los recientes Reglamentos de la Unión Europea en materia de sucesiones, régimen económico matrimonial y de los efectos patrimoniales de las uniones registradas, y de la nueva propuesta Third Restatement of Conflict of Laws en Estados Unidos, este trabajo demuestra que en ambos lados del Atlántico existe una tendencia dirigida a reducir el ámbito de aplicación de la regla lex rei sitae. En este sentido, este estudio explora tanto las razones de ello como los desafíos que esta tendencia plantea. También pone de relieve que, sin perjuicio de ello, la regla lex rei sitae continúa persistiendo en relación con ciertas cuestiones consideradas el núcleo central de los bienes inmuebles.

Abstract This paper examines the application of Muslim personal law in the Kenyan courts. It addresses jurisprudential issues which engage conventional government judges, magistrates and kadhis (Islamic judges). The interaction between the conventional and religious courts has paved the way for a conflict of laws on matters related to Muslim personal law and has led to an interesting scenario of constructive conversation and criticism that in turn has set the stage for an emerging comparative jurisprudence within a pluralistic society. Factors which contribute toward conflicts include wholesale adoption of Common Law and Islamic law notions and exemption clauses in statutes. To overcome the challenges facing the kadhis' courts and the application of Muslim personal law in Kenya, the paper proposes the adoption of a progressive comparative jurisprudential approach in responding to emerging legal issues facing Muslim litigants in the Kenyan courts.

Marriage influences the economic rights of spouses when joint community property is created. When a marriage is dissolved, joint community property has to be divided. Each country sets different rules about how joint community property should be divided between spouses. Lithuania has chosen the presumption of equal shares in joint community property. Courts may depart from equal shares of spouses because of such important circumstances as interests of children, health state of a spouse, and personal income used to increase joint community property. However, courts have never departed from the equal shares principle due to differing contributions by spouses to matrimonial property. Meanwhile, other countries take into account contribution of spouses in order to divide property fairly and to protect the interests of the spouse who has contributed significantly to joint property, if the marriage was brief and the marriage produced no children. The impossibility to depart from equal shares to different contribution of spouses could increase the misuse of the institution of marriage and the unjust division of joint community property when the spouse who has not contributed to joint community property receives an equal share of it.

The equalisation of women’s and men’s marital rights is still a challenge for certain countries on the African continent. Although most African countries have adopted supreme constitutions guaranteeing a host of justiciable human rights, the marginalisation and subjugation of women persists. In this article, we engage in a critical review and assessment of two divergent court decisions (one from Swaziland and the other from Kenya) which concern the matrimonial property rights of women. Those cases will be used as the foundation for investigating and evaluating the degree to which Swaziland and Kenya are either enhancing or constraining women’s matrimonial rights. In this article, we also assess the extent to which national constitutional law is being harmonised with existing and recently promulgated legislation and whether the purported synthesis of enacted marriage laws has affected constitutional equality in those specific countries. Additionally, we contend that the promulgation of new legislation and/or the amendment or repeal of unconstitutional legislation is insufficient to advance true equality. The courts or the judiciary, must also perform their remedial and pre-emptive role in the protection, enforcement and promotion of constitutional rights and the facilitation of equality reform. In our opinion, the matrimonial property rights of women in Africa can be equalised and enhanced even in systems of law that remain rooted in traditionalism and which habitually treat women as inferior to men. Such a mammoth undertaking requires a dual commitment and concerted action from both the legislature and the judiciary.

This article demonstrates how the application of the ordinary rules of property law in the determination of the property rights of spouses in Nigeria has been unfair to a financially weaker spouse (usually the wife). It calls for reconsideration of the present matrimonial property rights arrangement between a husband and a wife in Nigeria. It argues in favour of the statutory introduction of the concept of “matrimonial property” in Nigeria to apply both during marriage and at divorce. To give some background, reference is made to the South African matrimonial property system of community of property and the accrual system. The article proposes that a special category of property, known as “matrimonial property” and which emphasizes the equal proprietary rights of spouses, is recognized.

Without being provided with a legal commitment in formal terms of mutual implicit mandate between spouses, the new Romanian Civil Code establishes, under the provisions of art. 345–347, included in Book II (Second Book) – About Family, Title II (Second Title) – Marriage, Chapter VI – Patrimonial rights and obligations of the spouses, second section – Legal Matrimonial Regime. Though, related to the mass of common goods, lato sensu, spouses are enabled with the same patrimonial rights and obligations, the legislator operates a distinction, according to the type of legal act concluded by one of them. Thus, each spouse may freely use, preserve, administer common goods, under the law requirements, but the spouse cannot conclude papers of disposition, with reference to the family goods, without the consent of the other spouse. The present article analyses equally, the elements that form the common law incident to mutual implicit mandate between spouses, including legal sanctions suitable to states of inobservance and the particular rules, waiving from the general civil principles.