Posts
Jeremy D. Morley
On
June 28, 2017 Monaco adopted a new Law on Private International Law. It sets
forth the rules concerning divorce jurisdiction, authorizes spousal selection
of the law to govern marital regimes, and provides rules concerning the
applicable law concerning maintenance.
An
informal translation of such provisions is as follows:
No. 1448 - Law on Private
International Law
CHAPTER II - MARRIAGE
Section 1 - Formation
of marriage
Article 32: The form of marriage celebrated before the
Monegasque authorities is governed by Monegasque law.
Article 33 Subject to the provisions of Article 27, the
substantive conditions of the marriage celebrated in Monaco shall be governed
by the law of the State of which he is a national at the time of the marriage.
Article 34: Marriage concluded abroad in accordance with the
law of the State of celebration shall be recognized as such 4/13 in the
Principality, unless it is contrary to Monegasque public policy, or if it has
been celebrated abroad with the clear intention of evading the provisions of
Monegasque law.
Section II - The
respective rights and duties of spouses
Article 35: The respective rights and duties of spouses
shall be governed:
1. by the law of the State in whose
territory the spouses are domiciled or jointly separated;
2. in the absence of domicile of
the spouses in the territory of the same State by the law of the State in whose
territory the spouses had their last common domicile;
3. and, failing that, by Monegasque
law. Notwithstanding the provisions of the preceding paragraph, third parties
who have treated in good faith in the Principality with a spouse domiciled
there may avail themselves of the provisions of Monegasque law concerning the
rights and duties of spouses.
In all cases, the provisions of Monegasque law ensuring the
protection of the family home and of the furnishings furnishing it are
applicable when this housing is located in the Principality.
Section III -
Matrimonial regime
Article 36: The
matrimonial regime is governed by the law chosen by the spouses. Spouses may
choose the law of the State in which they establish their domicile after the
marriage, the law of a State of which one of them has the nationality at the
time of the choice, the State in whose territory one of them has his domicile
at the time of the election or the law of the State in which the marriage is
celebrated.
The duty so designated applies to all of their property.
The provisions of this article do not derogate from the
provisions of articles 141 and 1235 of the Civil Code.
Article 37: The designation of the applicable law must be
written and signed by both spouses. It shall take the form provided for in the
marriage contract by the designated right or by the State in whose territory
the act is drafted.
This designation must be express or result from the
provisions of a marriage contract in one of the forms thus provided.
The designation of the applicable law may be made or amended
at any time. If it is subsequent to the celebration of the marriage, it has
effect only for the future. The spouses may dispose of it otherwise, without
prejudice to the rights of third parties.
The existence and validity of consent in respect of such
designation shall be governed by the designated right.
The provisions of this article do not derogate from the
provisions of article 1243 of the Civil Code or those of article 141 of the
Civil Code.
Article 38: In the
absence of an election of right, the matrimonial regime shall be governed:
1. by the law of the State in whose
territory the spouses establish their domicile after marriage;
2. in the absence of domicile in
the territory of the same State by the law of the State of which both spouses
are nationals at the time of the marriage;
3. in the absence of residence in
the territory of the same State or of a common nationality, or in the case of a
plurality of common nationalities, by Monegasque law.
Article 39: The
effects of the matrimonial regime on a legal relationship between a spouse and
a third party are governed by the law applicable to the regime.
However, if the law of a State provides for publication or
registration of the matrimonial property regime and these formalities have not
been complied with, the law applicable to the matrimonial property regime may
not be invoked by a spouse to a third party of the spouses or the third person
has his habitual residence in that State.
Similarly, if the law of a State in which immovable property
is situated provides for the formalities of publication or registration of the
matrimonial property regime and the formalities have not been complied with,
the law applicable to the matrimonial property regime cannot be A spouse to a
third party for the legal relationship between a spouse and a third party in
respect of that immovable.
The provisions of the second and third paragraphs shall not
apply if the third party knew or ought to have known the law applicable to the
matrimonial property regime.
Section IV - Divorce and legal separation
Article 40: Monegasque courts shall have jurisdiction to
deal with divorce and legal separation:
1. where the domicile of the
spouses is in the territory of the Principality;
2. where the last domicile of the
spouses was in the territory of the Principality and one of the spouses still
resides there;
3. where the defendant spouse is
domiciled in the Principality;
4. if one of the spouses is of
Monegasque nationality.
The Monegasque courts are also competent to pronounce the
conversion of the legal separation into divorce when the separation of body was
pronounced in Monaco.
Article 41: The law applicable to divorce or legal
separation before the Monegasque courts is Monegasque law, unless the spouses
request the application of the law of the State of which they have shared
nationality.
The spouses may also agree before the celebration of the
marriage of the application of the law of a State of which either of them has
the nationality or of the law of the State in whose territory they have their
common domicile.
CHAPTER III -
FILIATION AND ADOPTION
Section I. - Affiliation
Article 42: In addition to the cases provided for in the
general provisions of this Code, Monegasque courts shall have jurisdiction in
relation to the establishment or dispute of filiation where the child or that
of his parents whose paternity or maternity is sought or In the territory of
the Principality or has Monegasque nationality.
Article 43: The establishment and challenge of filiation
shall be governed by the law of the State of which the child is a national. The
nationality of the child shall be assessed on the day of his birth or, in the
event of judicial finding or dispute, on the day on which the application is
lodged.
Article 44 Voluntary recognition of paternity or maternity
is valid if its validity is admitted in a State of which the child or the
person who made the recognition has the nationality or his domicile on the date
of the latter.
Article 45: The law which governs the filiation of a child,
when it arises outright of the law, determines the effect on this filiation of
an act of recognition.
The law governing the first recognition of a child
determines the effect on the child of subsequent recognition.
CHAPTER IV - MAINTENANCE
OBLIGATIONS
Article 52: In addition to the cases provided for in the
general provisions of the present Code, courts of the Principality are
competent to hear all claims concerning maintenance obligations where the
creditor or maintenance debtor is domiciled in the Principality or is a
national of Monaco.
The Monegasque court that is competent to hear an action
relating to the status of persons is also competent to hear an application
relating to a maintenance obligation ancillary to that action.
Article 53: The maintenance obligation between ascendants
and descendants shall be governed by the law of the State in whose territory
the maintenance creditor is domiciled.
However, Monegasque law applies where the creditor cannot
obtain support from the debtor under the right referred to in the preceding
paragraph.
Article 54: The maintenance obligation between spouses is
governed by the law governing the respective rights and duties of the spouses.
Financial measures intended to compensate for the prejudice
created by the dissolution of marriage shall be governed by the law under which
divorce is pronounced.
Article 55: The right of a public body to claim
reimbursement of the benefit provided to the creditor in lieu of the
maintenance debtor is subject to the law governing that body.
