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?

For marriages concluded until 28 January 2019, Croatian national rules apply. Matrimonial property regimes are subject to the law of the country of which both spouses are nationals. If they are nationals of different countries, the law of the country of their common habitual residence is applied. If spouses do not have the same nationality or do not have a common habitual residence, the law of the country of their last common residence is applicable. If the applicable law cannot be determined according to these rules, Croatian law is applied (Article 36 of the Private International Law Act).

The applicable law for the contractual matrimonial property regimes shall be the law that was applicable to the legal matrimonial property regime at the time when the spouses entered into the agreement.

The Republic of Croatia is not a signatory party to the 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes.

Bilateral conventions on international legal assistance that contain conflict-of-law rules on matrimonial property relations have been concluded with the Czech Republic, Hungary, Mongolia, Poland, Romania, the Russian Federation and the Slovak Republic (further information available at http://www.mprh.hr/bilateralna-suradnja-01).

Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules apply to determine the law applicable to all marriages concluded as from 29 January 2019 and to marriages concluded before the date of entry into force where the spouses have chosen a law applicable to their matrimonial regime as from 29 January 2019.

In the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.

  • The spouses’ first common habitual residence after the conclusion of the marriage.
  • Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
  • Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.

By way of exception and provided that one of the spouses so requests, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the conclusion of the marriage shall apply (Art. 22.3).

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)?

Until 28 January 2019, Croatian law itself did not provide for a choice of applicable law, so if both spouses were Croatian nationals such a choice was not admissible. However, if one spouse is a national of another country and if the law originally applicable to the spouses' property relations (the law applicable at the time the spouses entered into the agreement) allows such a choice, the spouses may choose the applicable law (Article 37 of the Private International Law Act), if the effect of its application would not be contrary to the public policy (Constitution) of the Republic of Croatia (Article 4 of the Private International Law Act).

Regulation (EU) 2016/1103 provides for the possibility to choose the law of one of the States of which at least one of the spouses is a national or the law of the habitual residence of either spouse at the time of the choice as the law applicable to their matrimonial property regime (Art. 22). This choice may only be validly made as from 29 January 2019 within the framework of a marriage contract or an agreement on the choice of applicable law and in compliance with the formal requirements laid down in Article 23. If Croatian law is deemed applicable, the formal requirements include a written form of the agreement with a notarial certification of the spouses’ signatures.

Finally, the choice of law applicable to the matrimonial property regime during the marriage will only have effect for the future, unless otherwise agreed by the spouses and without prejudice to the rights of third parties.