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?

In the absence of a choice of law, the spouses’ common national law at the time of the marriage shall prevail. If the spouses do not have the same nationality at that time, the law of the State in which they jointly reside shall apply. Alternatively, the effects of the marriage shall be subject to the law with which the spouses are jointly most closely connected with (art. 15 par. 1 EGBGB [the Introductory Act to the German Civil Code] in conjunction with art. 14 par. 1, 1-3 EGBGB).

Art. 16 par. 1 EGBGB contains a provision concerning the protection of third parties acting in good faith who legitimately rely on the application of the German matrimonial property regime in the absence of any entry to the contrary in the Register of Matrimonial Property Regimes.

The German-Iranian Friendship Treaty of 17 February 1929 provides for the application of the respective national law to spouses who are both Iranian in Germany and spouses who are both German in Iran (cf. final protocol relating to art. 8 par. 3 of the Treaty). Moreover, by virtue of art. 15 par. 4 EGBGB, the provisions of the Law on the matrimonial property regime of (German) displaced persons and refugees apply.

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)?

In principle, German law allows the choice of applicable law but limits it to certain legal systems. For example, it is possible to choose the law of a State if one of the spouses is a national of that State or has his/her habitual residence there. Or, with sole reference to real estate, the law of the place in which the property is situated may be chosen (art. 15 par. 2 EGBGB). A choice of law must be recorded in an authentic instrument. Solely in the case of this choice being made abroad, it is sufficient to meet either the formal requirements applicable to marriage contracts imposed by the law chosen or by the law of the place in which the choice is made (art. 14 par. 4 EGBGB and art. 15 par. 3 EGBGB).