Thursday, July 13, 2017
Monaco’s New Law on International Private Law
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.