ECLI:EU:C:2026:538•Opinion of Advocate General Richard de la Tour delivered on 2 July 2026.#SQ v YR.#Request for a preliminary ruling from the Nejvyšší soud.#Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EU) 2016/1103 – Jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes – Article 1(1) – Scope – Article 3(1)(a) – Concept of ‘matrimonial property regime’ – Immoveable property acquired in co-ownership by spouses under a separate property regime – Proceedings for the liquidation and division of co-ownership brought after the dissolution of a marriage – Included.#Case C-300/25.
Opinion of Advocate General Richard de la Tour delivered on 2 July 2026.#SQ v YR.#Request for a preliminary ruling from the Nejvyšší soud.#Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EU) 2016/1103 – Jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes – Article 1(1) – Scope – Article 3(1)(a) – Concept of ‘matrimonial property regime’ – Immoveable property acquired in co-ownership by spouses under a separate property regime – Proceedings for the liquidation and division of co-ownership brought after the dissolution of a marriage – Included.#Case C-300/25.
ECLI:EU:C:2026:538Eu CjeuJul 2, 2026
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OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 2 July 2026 (1)
Case C‑300/25 [Duftošek] (i)
SQ
v
YR
(Request for a preliminary ruling from the Nejvyšší soud (Supreme Court, Czech Republic))
( Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EU) 2016/1103 – Jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes – First sentence of Article 1(1) and Article 1(2)(g) – Article 3(1)(a) – Concept of ‘matrimonial property regimes’ – Spouses who have opted for the separate property regime – Immovable property acquired in co-ownership solely by those spouses during their marriage – Proceedings brought after divorce for the liquidation and division of that co-owned property )
I. Introduction
1. Spouses residing in the Czech Republic, who had opted for a contractual separate property regime, acquired, in co-ownership (en indivision), a property unit situated in France. Following their divorce, one of the spouses brought proceedings before a Czech court with a view to liquidating and dividing that co-owned property, on the basis of rules of Czech general law.
2. The Nejvyšší soud (Supreme Court, Czech Republic), which is the referring court, must rule on the international jurisdiction of the court seised. It is uncertain of the extent to which the dispute’s connection with the marriage is significant when determining whether it falls within the scope of Regulation (EU) 2016/1103, (2) which defines the concept of a ‘matrimonial property regime’, or of Regulation (EU) No 1215/2012, (3) since the spouses chose a matrimonial property regime that does not organise their property relationships and the existence of a co‑ownership arrangement (indivision) between them does not depend on the continuation of their matrimonial relationship.
3. That request for an interpretation of the concept of a ‘matrimonial property regime’ arises in a novel context, having regard to the Court’s case-law in civil and commercial matters, which predates Regulation 2016/1103, applicable to matrimonial property regimes, and to the resulting choices of the EU legislature.
4. Since matters relating to ‘the nature of rights in rem relating to a property’ (4) are excluded from the scope of Regulation 2016/1103 and the courts of the Member State in which the property is situated have exclusive jurisdiction in proceedings concerning rights in rem in immovable property under Article 24(1) of the Brussels I bis Regulation, and since the co‑ownership arrangement at issue is governed by such rights, the problem is immediately apparent. Clearly, two opposing forces of attraction are at work, namely that of the law governing the matrimonial property regime and that of the law governing rights in rem.
5. This thus gives the Court an opportunity to define, with precision, what comes within the scope of property relationships between spouses in connection with the marriage or its dissolution in a very common factual setting, namely the acquisition of property in common by spouses who are subject to a separate property regime. The task is complex in so far as this definition must be coordinated with the definition derived from the Court’s case-law on rights in rem in immovable property which delineates the scope of the Brussels I bis Regulation and Regulation (EU) No 650/2012. (5) Moreover, particular care is required because of the impact that delimitation of the scope of Regulation 2016/1103 has on other types of co-ownership which may exist between (former) spouses depending, where appropriate, on when the co-ownership arrangement is liquidated (during the marriage or after its dissolution) and on the rights of third parties.
6. Since the scope of the concept of a ‘matrimonial property regime’ must be examined in the light of its definition in Article 3(1)(a) of Regulation 2016/1103 and the exclusion set out in Article 1(2)(g) thereof, I shall set out the reasons why I am of the view that:
– that concept encompasses the property relationships of the spouses organised under a co‑ownership arrangement which is not governed by the matrimonial property regime that they have chosen; and
– the dispute relating to the liquidation and the division of co‑owned property does not concern the nature of rights in rem over that property, within the meaning of that regulation.
II. Legal framework
A. European Union Law
1. The Brussels I bis Regulation
7. Article 1 of the Brussels I bis Regulation, which appears in Chapter I thereof, entitled ‘Scope and definitions’, provides:
‘1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. …
2. The Regulation shall not apply to:
(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;
…’
8. Under the heading ‘Jurisdiction’, Chapter II of that regulation contains several sections, including Section 6, entitled ‘Exclusive jurisdiction’. The first subparagraph of Article 24(1) in that section is worded as follows:
‘The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties:
(1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated.’
2. Regulation 2016/1103
9. Recitals 15, 18 and 52 of Regulation 2016/1103 state:
‘(15) To provide married couples with legal certainty as to their property and offer them a degree of predictability, all the rules applicable to matrimonial property regimes should be covered in a single instrument.
…
(18) The scope of this Regulation should include all civil-law aspects of matrimonial property regimes, both the daily management of matrimonial property and the liquidation of the regime, in particular as a result of the couple’s separation or the death of one of the spouses. For the purposes of this Regulation, the term “matrimonial property regime” should be interpreted autonomously and should encompass not only rules from which the spouses may not derogate but also any optional rules to which the spouses may agree in accordance with the applicable law, as well as any default rules of the applicable law. It includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any property relationships, between the spouses and in their relations with third parties, resulting directly from the matrimonial relationship, or the dissolution thereof.
…
(52) The law determined as the law applicable to the matrimonial property regime should govern the matrimonial property regime from the classification of property of one or both spouses into different categories during the marriage and after its dissolution, to the liquidation of the property. It should include the effects of the matrimonial property regime on a legal relationship between a spouse and third parties. However, the law applicable to matrimonial property regime may be invoked by a spouse against a third party to govern such effects only when the legal relations between the spouse and the third party arose at a time where the third party knew or should have known of that law.’
10. Article 1 of that regulation, entitled ‘Scope’, provides:
‘1. This Regulation shall apply to matrimonial property regimes.
It shall not apply to revenue, customs or administrative matters.
2. The following shall be excluded from the scope of this Regulation:
…
(c) maintenance obligations;
(d) the succession to the estate of a deceased spouse;
…
(f) the entitlement to transfer or adjustment between spouses, in the case of divorce, legal separation or marriage annulment, of rights to retirement or disability pension accrued during marriage and which have not generated pension income during the marriage;
(g) the nature of rights in rem relating to a property; and
(h) any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.’
11. Under the heading ‘Definitions’, Article 3 of that regulation provides, in paragraph 1 thereof:
‘For the purposes of this Regulation:
(a) “matrimonial property regime” means a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution;
(b) “matrimonial property agreement” means any agreement between spouses or future spouses by which they organise their matrimonial property regime;
…’
12. Article 6 of that regulation, entitled ‘Jurisdiction in other cases’, provides, in paragraph (b) thereof:
‘Where no court of a Member State has jurisdiction pursuant to Article 4 or 5 or in cases other than those provided for in those Articles, jurisdiction to rule on a matter of the spouses’ matrimonial property regime shall lie with the courts of the Member State:
…
(b) in whose territory the spouses were last habitually resident, in so far as one of them still resides there at the time the court is seised …’
13. Article 21 of Regulation 2016/1103, entitled ‘Unity of the applicable law’, states:
‘The law applicable to a matrimonial property regime pursuant to Article 22 or 26 shall apply to all assets falling under that regime, regardless of where the assets are located.’
14. Article 27 of that regulation, entitled ‘Scope of the applicable law’, provides:
‘The law applicable to the matrimonial property regime pursuant to this Regulation shall govern, inter alia:
(a) the classification of property of either or both spouses into different categories during and after marriage;
(b) the transfer of property from one category to the other one;
(c) the responsibility of one spouse for liabilities and debts of the other spouse;
(d) the powers, rights and obligations of either or both spouses with regard to property;
(e) the dissolution of the matrimonial property regime and the partition, distribution or liquidation of the property;
(f) the effects of the matrimonial property regime on a legal relationship between a spouse and third parties; and
(g) the material validity of a matrimonial property agreement.’
B. Czech law
15. The zákon č. 89/2012 SB., občanský zákoník (Law No 89/2012 on the Civil Code) (‘the Civil Code’) provides, in Paragraph 708 thereof, that anything that belongs to spouses, has a property value, and is not excluded from legal relations, constitutes part of the community of property of the spouses. According to subparagraph 2 of Paragraph 708, that community of property is subject to a statutory regime, a contractual regime or a regime based on a court decision.
16. Under Paragraph 709(1) of the Civil Code, in the statutory regime, community of property includes assets acquired by one of the spouses or both spouses jointly during the marriage, with the exception of the assets specified in that provision.
17. The first sentence of Paragraph 716(1) of the Civil Code provides that spouses may agree on a matrimonial property regime that differs from the statutory regime.
18. According to the first sentence of Paragraph 717(1) of that code, a contractual matrimonial regime may consist of a separate property regime.
19. In accordance with Paragraph 729 of that code, in the separate property regime, a spouse may dispose freely of his or her property without the other spouse’s consent.
20. Paragraph 1115(1) of the Civil Code provides that persons who hold title to property together are co-owners.
21. Paragraph 1140 of that code provides that no person may be compelled to remain a co-owner and that each co-owner may at any time request that his or her share in a common property be severed, if the co-owned property can be divided, or that the co-ownership arrangement be terminated.
22. According to Paragraph 1143 of that code, where co-owners do not agree on the termination of the co-ownership arrangement, the decision is to be made by a court at the request of one of the co-owners. If a court decides to terminate a co-ownership arrangement, it must also determine the arrangements for the division between the co-owners.
III. The facts of the dispute in the main proceedings and the question referred for a preliminary ruling
23. The applicant, SQ, and the defendant, YR, married on 1 May 2015 and decided to make their property relationships subject to a contractual separate property regime (6) and to Czech law.
24. During their marriage, they acquired property (7) situated in Paris (France) in co-ownership, each of them thus being half-owners of the property, according to SQ. (8) In 2020, their marriage was dissolved. The spouses’ last habitual residence was in the Czech Republic. The dispute between the former spouses concerns the liquidation and division of the co-owned immovable property. (9)
25. By order of 26 October 2022, the Obvodní soud pro Prahu 5 (Prague 5 District Court, Czech Republic), ruling at first instance, held that the proceedings for the liquidation and division of that co‑owned property are governed by general law and therefore fall within the material scope of the Brussels I bis Regulation. In accordance with Article 24(1) of that regulation, it is the courts of the Member State in which the property is situated, in this case the French courts, that have jurisdiction to hear such proceedings.
26. That decision was overturned by the Městský soud v Praze (Municipal Court, Prague, Czech Republic) on appeal by the applicant, SQ. According to that court, the case falls within the scope of Regulation 2016/1103 on the ground that the term ‘matrimonial property regime’, which is an autonomous concept of EU law, encompasses any optional rules that spouses may agree between themselves in accordance with the applicable law. Therefore, the separate property regime constitutes a matrimonial property regime within the meaning of that regulation in so far as it concerns property rights arising from marriage. Consequently, the Czech courts have international jurisdiction to hear that case on the basis of Article 6(b) of that regulation.
27. The defendant, YR, brought an appeal on a point of law against that decision before the Nejvyšší soud (Supreme Court).
28. That court states that the dispute relating to the liquidation and division of the immovable property held in co‑ownership between the former spouses is governed by general rules of national private law (10) and has no connection with the marriage or the law governing spouses’ property relationships, and that it is generally accepted that such proceedings fall within the scope of civil and commercial matters within the meaning of the Brussels I bis Regulation. In the case of co‑ownership of immovable property, the courts of the Member State in which the property is situated have exclusive jurisdiction, in accordance with Article 24(1) of that regulation.
29. However, the referring court is questioning the significance, for the resolution of the dispute, of the existence of the marriage, and likewise of the fact that the co‑ownership arrangement exists solely between the (former) spouses and results from their choice of an agreed separate property regime.
30. In that regard, it explains that, under Czech law, a co‑ownership arrangement between spouses who have opted for a separate property regime is not distinguished from other forms of co‑ownership also governed by general law, including as regards the grounds which may justify its liquidation, the arrangements for its division and the time frame within which these occur.
31. It notes that the Court has not yet ruled on whether, in a situation such as that at issue in the present case, the dispute constitutes a specific property dispute between spouses arising directly from the matrimonial relationship or its dissolution (11) – and is therefore governed by the rules on matrimonial property regimes under Regulation 2016/1103 – or whether it is a property dispute between spouses under general law that is unrelated to their marriage, and is thus a civil or commercial matter, within the meaning of the Brussels I bis Regulation.
32. In those circumstances, the Nejvyšší soud (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Do proceedings for the [liquidation and division] of joint ownership interests in an immoveable property, acquired by the spouses as joint ownership interests as a result of an agreed separate property regime, constitute proceedings on a matrimonial property regime within the meaning of Articles 1 and 3(1)(a), of [Regulation 2016/1103]?’
33. SQ, YR, the Czech Government and the European Commission submitted written observations and participated in the hearing held on 16 April 2026, during which the parties responded to questions put to them by the Court for oral answer.
IV. Analysis
34. The question referred for a preliminary ruling seeks to determine the international jurisdiction of the Czech court seised, on the basis of Article 6 of Regulation 2016/1103 (12) in respect of an application for the liquidation (13) and division of an immovable property held in co‑ownership, purchased in France by spouses who are subject to a separate property regime. (14) That question relates to the scope of that regulation, (15) which means that it is necessary to clarify the scope of the concept of a ‘matrimonial property regime’, as defined in Article 3(1)(a) of that regulation and as may be inferred from the exclusion in Article 1(2)(g) thereof.
35. The criteria for defining that concept should be derived having regard to the limits imposed on the court at the stage at which international jurisdiction is determined. It is apparent from the Court’s case-law on EU regulations in civil and commercial matters that the court seised examines neither the admissibility nor the substance of the application, but identifies only those factors that, in the given legal situation and according to the law relied upon, are capable of providing a basis for its jurisdiction. (16)
36. I would point out that the account of the facts of the main proceedings, as supplemented at the hearing, (17) leads me from the outset to exclude from my analysis the notion of a ‘matrimonial property agreement’, within the meaning of Article 3(1)(b) of Regulation 2016/1103, since no agreement was concluded between the spouses to govern the co‑ownership arrangement between them in order to adapt the separate property regime they had chosen. (18)
A. Preliminary observations on the methodology for interpreting the concept of a ‘matrimonial property regime’
37. It must first be noted, as several authors have done, (19) that the concept of a ‘matrimonial property regime’ is used in most other EU regulations as a criterion for exclusion or delimitation, in particular in Article 1(2)(a) of the Brussels I bis Regulation, (20) Article 1(2)(c) of the Rome I Regulation, (21) Article 1(2)(b) of the Rome II Regulation (22) and Article 1(2)(d) of Regulation No 650/2012. The most precise provision is Article 1(2)(e) of the Rome III Regulation. (23) It provides that that regulation does not apply to the property consequences of the marriage. Consequently, it is possible to refer to the case-law and the commentaries on those articles in order to define the concept of a ‘matrimonial property regime’.
38. Second, in the judgment of 1 March 2018, Mahnkopf, (24) the Court defined what makes it possible to distinguish the scope of two regulations relating to matters excluded from the Brussels I bis Regulation, namely succession and matrimonial property regimes. I therefore consider it important to make it clear from the outset that the request for interpretation submitted to the Court arises in a different context. The Brussels I bis Regulation, which forms the basis for cooperation in civil matters, (25) is applicable in all Member States. That is not the case for Regulation 2016/1103, which is binding only on 18 Member States in the framework of enhanced cooperation. (26) Consequently, the rules on jurisdiction and recognition of judgments, which are based on the principle of mutual trust, apply only between Member States bound by that regulation. A broad interpretation of the scope of that regulation would have the effect of restricting the scope of the Brussels I bis Regulation and would mean that the exclusive jurisdiction of the court of the Member State in which the immovable property concerned is situated no longer applies. The courts of States not bound by Regulation 2016/1103 must therefore apply their domestic rules in order to determine their international jurisdiction and to recognise the judgments given. I am of the view that those consequences should not affect the interpretation of the concept of a ‘matrimonial property regime’. (27) I would add, in that regard, that it is necessary to take into consideration the fact that certain rules of jurisdiction are applicable in situations which concern states not bound by Regulation 2016/1103 (28) or third states (29) and that the rules concerning conflict of laws are also applicable in relations with states not bound by that regulation. (30)
39. Third, Chapter I of Regulation 2016/1103 comprises Articles 1 to 3, which are devoted to the delimitation of its scope and definitions, which marks a significant difference between that regulation and the Convention on the law applicable to matrimonial property regimes. (31)
40. Article 1 of that regulation, which defines, in the first sentence of paragraph 1, its scope ratione materiae relating to ‘matrimonial property regimes’, is presented in legal literature as being decisive for the interpretation of that regulation, since it sets out exhaustively the matters which are excluded. (32) Those not listed therein are considered to be included if they fall within the scope of that regulation. (33)
41. Article 3(1)(a) of Regulation 2016/1103 defines a ‘matrimonial property regime’ as ‘a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution’. (34)
42. Fourth, in recital 18 of that regulation, it is stated that:
– ‘the term “matrimonial property regime” should be interpreted autonomously’;
– it ‘should encompass not only rules from which the spouses may not derogate but also any optional rules to which the spouses may agree in accordance with the applicable law, as well as any default rules of the applicable law’, and
– it ‘includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any property relationships, between the spouses and in their relations with third parties, resulting directly from the matrimonial relationship, or the dissolution thereof’.
43. Fifth, Article 3(1)(a) and recital 18 of Regulation 2016/1103 are in line with the Court’s case-law on the exclusion of matrimonial property regimes from the scope of European instruments in civil and commercial matters. They also cover spouses’ relations with third parties resulting directly from the matrimonial relationship, or the dissolution thereof.
44. Accordingly, that case-law must be recalled in order to determine how, in the particular circumstances of the case in the main proceedings, it may be used to interpret Article 3(1)(a) of Regulation 2016/1103 (B), before clarifying the implications of the framework laid down by that regulation, as regards both its scope (C) and the limitations it imposes in respect of rights in rem, in light of the subject matter of the issue to be addressed and the determination of the applicable law (D).
B. The case-law prior to Article 3(1)(a) of Regulation 2016/1103
45. The referring court rightly cites two judgments of the Court defining the concept of a ‘matrimonial property regime’ in the context of exclusion from the scope of the Brussels Convention, in point 1 of the second paragraph of Article 1 thereof, (35) and from the scope of the Brussels I bis Regulation, in Article 1(2)(a) thereof.
46. In the judgment in de Cavel, the Court held that ‘the term “rights in property arising out of a matrimonial relationship” includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any proprietary relationships resulting directly from the matrimonial relationship, or the dissolution thereof; disputes relating to the assets of spouses in the course of proceedings for divorce [(36)] may therefore, depending on the circumstances, concern or be closely connected with: (1) questions relating to the status of persons; or (2) proprietary legal relationships between spouses resulting directly from the matrimonial relationship or the dissolution thereof; or (3) proprietary legal relations existing between them which have no connection with marriage[, and] whereas disputes of the latter category fall within the scope of the [Brussels] Convention, those relating to the first two categories must be excluded therefrom’. (37)
47. In the order in Iliev , the Court held, applying the second of those criteria, that a dispute between former spouses relating to the liquidation of movable property acquired during the marriage concerns proprietary legal relationships resulting directly from the dissolution of the marriage and therefore does not come within the scope of the Brussels I bis Regulation. (38)
48. In the first of the cases which gave rise to those decisions, the matters relating to the matrimonial property regime brought before the referring courts were connected with divorce proceedings. In the second, the dispute, which arose after the divorce, concerned whether or not a vehicle purchased and registered in the name of the wife, which was to be determined in accordance with specific rules of the Family Code on jointly acquired property, was common property for the purposes of liquidation. (39)
49. Since the criterion of property relationships between spouses resulting directly from the matrimonial relationship or the dissolution thereof is set out in Article 3(1)(a) of Regulation 2016/1103, it is necessary to consider whether the judgment in de Cavel and the order in Iliev are applicable, by analogy, to the present case.
50. The referring court has rightly noted that there are grounds to express some reservations in that regard.
51. In the present case, the situation is different for two reasons. First, the dispute concerns immovable property held in common, and the common ownership of that property has no direct connection with the matrimonial property regime chosen, since the spouses opted for a separate property regime which, by definition, does not create any community of property. Second, the legal regime governing that property is a co-ownership regime governed by general law, applicable to all persons, whether married or not. (40)
52. I would add that, although the former spouses’ property relationship (the co‑ownership arrangement) arose during the marriage, it is difficult to regard it as resulting directly from the matrimonial relationship, in view of the spouses’ choice, from the outset of their union, to keep their property separate. (41) In those circumstances, might the property relationships between the spouses then be unconnected with the marriage? Such a finding should lead one to refer to the third criterion set out in the judgment in de Cavel, (42) under which the dispute would not be excluded from the field of civil and commercial matters.
53. Consequently, the Court is called upon to state whether the fact that that co‑ownership arrangement involves no one other than the spouses and is necessarily linked to their choice of a contractual separate property regime, which excludes any community of property, is sufficient to consider that that situation falls within the scope of Regulation 2016/1103.
54. The answer to that question entails determining the extent to which the EU legislature drew inspiration from the Court’s case-law and adopted a broad interpretation of the concept of a ‘matrimonial property regime’ when defining it in that regulation.
C. The concept of a ‘matrimonial property regime’ in the context of Regulation 2016/1103
55. Several reasons, arising from the Court’s methods of interpretation, justify interpreting that concept broadly.
1. The wording of Article 3(1)(a) of Regulation 2016/1103
56. First, the definition of the concept of a ‘matrimonial property regime’ set out in that article must be read in the light of the judgment in de Cavel in which it is stated that it covers ‘any proprietary relationships resulting directly from the matrimonial relationship or the dissolution thereof’. (43) That wording is inspired by the expression used in the Schlosser Report, namely ‘property rights arising from the matrimonial relationship’ . (44) That report states that ‘the mutual rights of spouses arising from “matrimonial regimes” correspond largely with what are best described in English as “rights in property arising out of a matrimonial relationship”’. (45)
57. In that regard, reference is made to the difficulties posed by the concept of ‘rights in property arising out of a matrimonial relationship’ arising from the fact that the United Kingdom and Ireland have no equivalent legal concept. In principle, property rights as between spouses are governed by general law. (46)
58. It is also noted that the concept of ‘rights in property arising out of a matrimonial relationship’ does not cover the same legal relations in all the ‘original Member States’. (47) Professor Schlosser thus highlighted the existence of various types of non‑exclusive systems, whereby those states have been able to develop legal institutions specific to relations between spouses, the main feature of which is to provide a comprehensive, albeit not exclusive, set of rules governing property, which may be contractual or statutory and which is supplemented, where appropriate, by rules governing proprietary relationships applicable to all spouses irrespective of the specific rights in property arising out of a matrimonial relationship adopted. (48)
59. Those points drawn from the Schlosser Report on the diversity of legal systems, which are still relevant today, (49) seem to me to be essential. I take the view that the definition of the concept of a ‘matrimonial property regime’ covers property relationships between spouses that are governed by general law, and not only by a single comprehensive set of rules on matrimonial property.
60. The Court has not yet had the opportunity to rule on that question, since it has so far given rulings in the light of circumstances falling within the scope of specific provisions governing property relationships between spouses, namely either protective measures adopted in divorce proceedings (the judgment in de Cavel), or a dispute concerning whether the property acquired during the marriage formed part of the spouses’ common property (the order in Iliev). (50)
61. Second, I note that, although recital 18 of Regulation 2016/1103 refers to all property relationships between spouses ‘resulting directly from the matrimonial relationship, or the dissolution thereof’, (51) that adverb does not appear in the definition of the concept of a ‘matrimonial property regime’ set out in Article 3(1)(a) of that regulation.
62. Like Dirk Looschelders, (52) I am of the view that it must be inferred from the wording of that provision, which is analogous in various language versions, (53) that the mere fact that property relationships arise from the marriage or its dissolution is a sufficient criterion. It can therefore be accepted that the requirement of a direct connection, as stated in the judgment in de Cavel and the order in Iliev (54) no longer needs to be satisfied.
63. In those circumstances, it is necessary to ensure that a broad interpretation of the concept of a ‘matrimonial property regime’, based on the wording of Article 3(1)(a) of Regulation 2016/1103, is justified not only by that wording but also in the light of the objectives pursued by the EU legislature and the scheme and context of that regulation.
2. The objectives pursued by Regulation 2016/1103, and the scheme and context thereof
64. First, the EU legislature clearly expressed the intention to adopt an instrument to eliminate the difficulties experienced by couples in managing or dividing their property, (55) by bringing together in Regulation 2016/1103 all the rules applicable to matrimonial property regimes, rules consisting of provisions on jurisdiction, applicable law, recognition or, as the case may be, acceptance, enforceability and enforcement of decisions, authentic instruments and court settlements. (56)
65. Regulation 2016/1103 is based on the fundamental principle of unity: in principle, a single authority has jurisdiction to rule on all matters relating to the spouses’ property relationships; that authority is to apply a single law (57) chosen by the spouses (58) or determined according to the objective connecting factors set out in that regulation, (59) which may be invoked against third parties under certain conditions. (60) That law is applicable to all of the spouses’ assets, regardless of where the assets are located, (61) as well as to their debts.
66. The aim of simplifying the spouses’ legal position is very clearly reflected in the consequences of that principle of unity for jurisdiction and the applicable law.
67. Thus, as regards jurisdiction, in particular where the dispute concerns immovable property, the desire to preserve the unity of jurisdiction (62) and of the law applicable to all of their assets (63) has prevailed over the reasons justifying the jurisdiction of the courts of the Member State in which the immovable property is situated. That jurisdiction is described in Regulation 2016/1103 as subsidiary, (64) whereas, in the judgment of 17 December 2015, Komu and Others, (65) which concerns the interpretation of the first subparagraph of Article 22(1) of Regulation No 44/2001, (66) the Court held that an action for the termination of co-ownership in undivided shares of immovable property situated in Spain by way of sale, brought before a Finnish court by co-owners residing in Finland, (67) falls within the category of proceedings which have as their object rights in rem in immovable property, which comes within the exclusive jurisdiction of the courts of the Member State in which the property is situated, (68) relying primarily on considerations of sound administration of justice. (69)
68. As regards the law applicable to the property relationships of the couple, the immutability (70) of that law strengthens the principle of unity. Furthermore, as regards immovable property, it should be noted that there is no special connecting factor to the law of the country in which the property is situated for the purposes of governing the protection of the family home. (71) As is made clear in the second sentence of recital 53 of Regulation 2016/1103, the rules on the family home fall within the scope of that regulation. (72) Moreover, it is not permissible to provide for the application of different laws to certain assets or depending on the nature of those assets. (73) Finally, from a more general perspective, it should be noted that that regulation covers not only rules of an imperative nature but also any optional and default rules. (74)
69. Consequently, it appears that the concept of a ‘matrimonial property regime’ within the meaning of Regulation 2016/1103 should encompass all the property consequences of marriage, in so far as they do not fall under a specific regime, such as, in particular, the regime governing maintenance obligations, that governing compensatory adjustment of pension rights (75) or the law applicable to the succession to the estate of a deceased spouse. (76)
70. Secondly, other arguments based on the scheme of Regulation 2016/1103 support the interpretation that the definition of the autonomous concept of a ‘matrimonial property regime’ in Article 3(1)(a) of that regulation is deliberately broad. They may be inferred from the relationship between that definition and Article 27 of that regulation, which governs the scope of the applicable law, (77) during the marriage and after its dissolution.
71. According to Peter Mankowski, (78) Article 27 of Regulation 2016/1103 sets out, in a positive but non-exhaustive list, the matters that in all cases must fall under the matrimonial property regime. He adds that this provision clearly enshrines a comprehensive regime as well as the principle of the unity of that regime. The concept of a ‘matrimonial property regime’ within the meaning of that regulation is, by its very design, extremely broad and highly heterogeneous. (79)
72. Specifically, Article 27(d) of that regulation provides that ‘the powers, rights and obligations of either or both spouses with regard to property’ are to be subject to the law applicable to the matrimonial property regime. Sara Godechot-Patris and Patrick Wautelet (80) express the view that that provision applies in the case of the acquisition of property in co-ownership, especially where the acquisition is arranged under a contractual separate property regime. I do not share that reservation based on the approach required by Regulation 2016/1103. In the case of a co-ownership arrangement, property relationships between spouses who have opted for the separate property regime, which are not governed by mandatory provisions of the law applicable to the matrimonial property regime, can be governed only by general law. If the fact that that consequence is specific to that regime were not taken into consideration, the scope of that regulation would be limited.
73. In addition, Article 27(e) of that regulation provides that the law applicable to the matrimonial property regime governs ‘the dissolution of the matrimonial property regime and the partition, distribution or liquidation of the property’.
74. Some authors argue, on that basis, that Regulation 2016/1103 applies to the division of property between spouses, regardless of whether that division is based on the provisions of a particular matrimonial property regime or more generally on the law of obligations or rights in rem, provided that there is an intrinsic link with the marriage, (81) and that the organisation of spouses’ property relationships is sufficient, without it being necessary to require a specific regime that necessarily involves a pooling of assets between them. (82)
75. Consequently, as regards the situation in which the spouses chose a separate property regime when they married, and the two of them solely acquired property together in co-ownership, it may be inferred from Article 3(1)(a) of Regulation 2016/1103, interpreted in conjunction with Article 27 thereof, that the division of that co-ownership arrangement falls within the scope of that regulation and that it should be governed by the law designated by that regulation, whether the division takes place before or after the dissolution of the marriage.
76. Thirdly, the context of the EU legislature’s objective, which is to give full effect to the principle of the unity of the rules governing couples’ property relationships, (83) also supports a broad interpretation of the concept of a ‘matrimonial property regime’. It must be taken into consideration to a certain extent that Regulation 2016/1103 builds on Regulation No 650/2012. The Court has confirmed that, in most cases, the ‘principle of the unity of jurisdiction and applicable law … informs that regulation’ (84) and that that principle also underpins the rule established in Article 4 of that regulation, inasmuch as that rule determines the jurisdiction of the courts of the Member States to rule ‘on the succession as a whole’. (85) However, as some authors point out, (86) consistency between Regulation No 650/2012 and Regulation 2016/1103 has limitations in practice, since two separate laws may apply, on the one hand, to the couple’s property relationships, and on the other, to succession, because of the different connecting factors provided for by those regulations. In addition, one of the objectives of Regulation No 650/2012, which is to ensure that the court seised applies the law of the forum, is not always achieved in the context of Regulation 2016/1103 because of the principle of the immutability of the applicable law. (87)
77. Lastly, it is necessary to highlight the specific consequences of that principle of unity for jurisdiction and the applicable law, which support the need for a broad interpretation of the concept of a ‘matrimonial property regime’ in situations similar to those in the main proceedings. Thus, where spouses who are subject to a separate property regime are co-owners of several immovable properties located in different Member States, and the dispute concerns the liquidation and division of each of those co-owned properties, the fact that Regulation 2016/1103 governs the designation of the competent court and the applicable law is of major importance. (88) Furthermore, during the liquidation and division of a property held in co-ownership between spouses who are subject to a separate property regime, issues relating to family and property relationships are also likely to arise, which justifies concentrating the resolution of disputes. Such issues may include the settlement of accounts between the spouses, for example where one spouse has financed the property in a proportion different from his or her share as determined at the time of the acquisition of the property, in circumstances arising from their life together as a couple, or the allocation of the family home. (89)
78. Following the interpretation of the term ‘matrimonial property regime’, as defined in Article 3(1)(a) of Regulation 2016/1103, I am of the view that it must encompass the property relationship between spouses, who are subject to a separate property regime, arising from a co-ownership arrangement between them which is governed by general law.
79. However, the fact that, in EU law, immovable property is subject to special provisions (90) makes it necessary to point out that there are certain limitations to be taken into consideration as regards the interpretation of the concept of a ‘matrimonial property regime’.
D. Limitations as regards rights in rem
80. From a methodological point of view, (91) on account of the exclusions set out in Article 1(2) of Regulation 2016/1103, it is not sufficient, in my view, to find that a co-ownership arrangement between spouses who are subject to a separate property regime falls, in general, within the concept of a ‘matrimonial property regime’, as defined in that regulation. Depending on the question to be decided by the court seised, it is necessary to ensure that there are no limitations relating to the subject matter of the dispute and the applicable law.
1. The subject matter of the dispute and the connection with the ‘nature of rights in rem’
81. In my view, the fact that the dispute concerns a co‑ownership arrangement between (former) spouses does not necessarily mean that it falls within the scope of Regulation 2016/1103, whatever claims may have been made. (92) Because of the close links between the law on property relationships between spouses and rights in rem, (93) especially in a dispute of this kind, it is necessary to consider the scope of the exclusion laid down in Article 1(2)(g) of that regulation concerning matters connected with the ‘the nature of rights in rem relating to a property’.
82. First, it may be noted that, although other regulations treat rights in rem as a ground for exclusive jurisdiction or exclusion, (94) no definition of that concept is given. (95)
83. Next, the Court has defined actions which have as their object ‘rights in rem in immovable property’ within the meaning of Article 24(1) of the Brussels I bis Regulation. The Court has held that the exclusive jurisdiction of the courts of the Member State in which the property is situated does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of that regulation and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with protection for the powers which attach to their interest. (96) The most important criterion is that the powers conferred on them by those rights are effective against third parties. (97)
84. Lastly, as regards the ‘nature of rights in rem’, which is also provided for by way of exclusion in Article 1(2)(k) of Regulation No 650/2012, the Court has held that that provision concerns the classification of property and rights and the determination of the prerogatives of the holder of such rights (98) and that the existence and number of rights in rem in the legal order of the Member States (‘numerus clausus’) are covered by the scope of that provision. (99)
85. In addition, the correlation between the exclusion set out in Article 1(2)(g) of Regulation 2016/1103 and Article 29 of that regulation, (100) entitled ‘Adaptation of rights in rem’, confirms that those provisions are intended to guarantee the autonomy of the Member States as regards rights in rem so that they are not required to recognise unknown rights in rem invoked under foreign law.
86. Accordingly, read in the light of recital 24 of Regulation 2016/1103, the exclusion set out in Article 1(2)(g) of that regulation does not apply where, for example, the issue is whether property acquired jointly by spouses who are subject to a separate property regime is held in co‑ownership between them. (101) That is also the case for an application, such as that in the main proceedings, which seeks the liquidation and division of co-owned property, in so far as it involves determining the rights of each former spouse under the law applicable to their property relationships. (102) Moreover, it may be inferred from Article 29 of that regulation, which concerns rights in rem arising from the spouses’ property relationship, that the fact that those rights are governed by provisions other than those of the matrimonial property regime in the strict sense is immaterial. (103) Finally, the adaptation mechanism laid down in that article justifies examining the function, within the matrimonial property regime, of the right in rem invoked.
87. I therefore consider that such an analysis of rights in rem is an integral part of defining the concept of a ‘matrimonial property regime’ as adopted by the EU legislature. It thus appears that the exclusion relating to the ‘nature of rights in rem’ must be interpreted strictly, on the basis of criteria which do not require the court seised to undertake a level of examination of the application going beyond what is necessary to verify its jurisdiction ab initio.
88. Moreover, although in the present case other limitations relating to the applicable law do not fall to be applied because of the subject matter of the dispute, I consider that they should nonetheless be highlighted, since they show that certain matters which do not concern ‘the nature of rights in rem’ nevertheless fall within the scope of the law governing rights in rem and are therefore excluded from the scope of Regulation 2016/1103.
2. The subject matter of the dispute and the scope of the law governing rights in rem
89. Several limitations can be identified. Patrick Wautelet explains that the arrangements whereby one of the spouses acquires a right in rem over property are regulated both by the law governing rights in rem and by the law governing the mode of acquisition of that property. (104) He is also of the view, like other authors, that intervention under the law governing rights in rem could be confined to acts which give concrete effect to the division of the property. (105)
90. There must also be a further caveat where the implementation of such a division requires a recording in a register. The formalities for such recording are excluded from the scope of Regulation 2016/1103 under Article 1(2)(h) thereof. (106)
91. After examining the various criteria for assessing the scope of Regulation 2016/1103, I consider, for the purposes of interpreting the concept of a ‘matrimonial property regime’, essentially that:
– the principle of the unity of jurisdiction and applicable law is defined and given concrete effect by that regulation in order to simplify the organisation of property relationships between (former) spouses, in the light of the particular features of those relationships, which arise from the spouses’ life together;
– fragmentation of proceedings based on the location of the couple’s property is excluded;
– the acquisition, in co‑ownership, of property solely by the two spouses, who are subject to a separate property regime, arises from their matrimonial relationship and, a fortiori, from that regime;
– the fact that general property law is applicable is irrelevant, since it is the only legal framework available to spouses under a separate property regime and its purpose is to organise the property relationship as a result of marriage or its dissolution, or in other words, to govern the spouses’ co‑ownership arrangement. In the present case, in order to resolve the dispute, it may be applied to divide the property between the spouses;
– the issue of the liquidation and division of immovable property held in co‑ownership by spouses is not covered by the exclusion relating to the ‘nature of rights in rem’, which has a limited scope; and
– Article 27(e) of Regulation 2016/ 1103 provides that the law applicable to the matrimonial property regime governs ‘the dissolution of the matrimonial property regime, its liquidation or the division of assets’.
Accordingly, those matters should be dealt with on the basis of Article 27 of Regulation 2016/1103, the law designated in this instance being that chosen by the spouses for their separate property regime.
92. Finally, in my view, this broadly inclusive approach satisfies the requirement not to complicate, by means of multiple criteria, the court’s determination of its international jurisdiction when it is seised.
93. Consequently, I propose that the Court answer the referring court’s question in the affirmative, with the result that the court having international jurisdiction would therefore be the court seised in the Czech Republic.
V. Conclusion
94. In the light of all the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Nejvyšší soud (Supreme Court, Czech Republic) as follows:
The first sentence of Article 1(1) and Article 3(1)(a) of Council Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes
must be interpreted as meaning that proceedings for the liquidation and division of immovable property, acquired in co-ownership during marriage by spouses who have opted for a contractual separate property regime, fall within the scope of that regulation.
1 Original language: French.
i The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
2 Council Regulation of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (OJ 2016 L 183, p. 1).
3 Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1) (‘the Brussels I bis Regulation’).
4 See Article 1(2)(g) of Regulation 2016/1103.
5 Regulation of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107, and corrigenda OJ 2012 L 344, p. 3, OJ 2013 L 60, p. 140, and OJ 2019 L 243, p. 9).
6 The Czech Government explains that that regime differs from the matrimonial property regime under general law. As regards the fact that the latter, which organises a community of property, applies in the absence of a choice of a contractual regime, see commentary on Paragraph 708 of the Civil Code by Zuklínová, M., ‘§ 708’, in Zuklínová, M. et al., Občanský zákoník, Komentáand, Svazek II, Wolters Kluwer, Prague, 2023.
7 In the application included in the file submitted to the Court, it is stated that the property is a unit comprising an apartment, a cellar and a bedroom. It is referred to as ‘immoveable property’ in the request for a preliminary ruling.
8 The deed of sale produced as an annex to SQ’s application is not included in the national file submitted to the Court. At the hearing, it was indicated that, in that deed, it is noted that the spouses had opted for the separate property regime. Reference is made to the rules of French law applicable to the liquidation of the co‑ownership arrangement and, by way of derogation from those rules, to the third paragraph of Article 1469 of the French Civil Code, which governs the calculation of récompenses (adjustment payments between spouses) in the event of the liquidation of the statutory community of property regime.
9 It is apparent from the application submitted to the Court that the request has arisen following the dissolution of the union and is justified by the fact that the former spouses are unable to reach an agreement on the liquidation and division of the co-owned property. The applicant proposes that the property be allocated to him in return for the payment of compensation.
10 The referring court refers to Paragraphs 1140(1) and 1143 of the Civil Code.
11 According to the referring court, that criterion is apparent from the judgment of 27 March 1979, de Cavel (143/78, ‘the judgment in de Cavel’, EU:C:1979:83), and the order of 14 June 2017, Iliev (C‑67/17, ‘the order in Iliev’, EU:C:2017:459, paragraph 30). However, although the latter decision relates to the dissolution of a union, it concerns a situation different from the situation in the main proceedings.
12 That provision governs only international jurisdiction. The court having special jurisdiction is then designated by the national legislation of the Member State concerned. Under Article 15 of Regulation 2016/1103, the court seised must verify whether it has jurisdiction.
13 Under Czech law, the liquidation and division of co-owned property are governed by Paragraphs 1140 to 1149 of the Civil Code. Under French law, which is the law of the place where the immovable property is situated, the liquidation of co‑owned property consists, as Stéphane David recalls (‘La liquidation de l’indivision’, La Semaine Juridique – Notariale et Immobilière, No 30-34, LexisNexis, Paris, 26 July 2019, dossier No 1259, pp. 43-49), in identifying and valuing, first, the co‑owned estate, made up of assets and liabilities assessed on the date closest to the division, in accordance with Paragraph 829 of the French Civil Code, and, secondly, in identifying the various financial claims and debts arising between the co‑owners in connection with the co‑owned property (for example, a debt arising from the exclusive enjoyment of the co‑owned property or from the receipt of income from that property, or a claim arising from the management or improvement of that property), recorded in co‑ownership accounts. Moreover, that liquidation must be distinguished from the liquidation of the matrimonial property regime, which in principle is not envisaged for spouses who are subject to a separate property regime. However, in practice, it is common for the spouses’ accounts to be settled. See Collard, F., ‘Synthèse – Séparation de biens’, JurisClasseur Notarial Formulaire, LexisNexis, Paris, last updated 25 March 2025, paragraphs 18-27. See also Paragraph 730 of the Czech Civil Code as regards the sharing of income from an activity carried out by spouses subject to a separate property regime, either jointly or by one spouse with the assistance of the other.
14 In family property law, a co‑ownership arrangement may arise where spouses who have not opted for a community property regime jointly purchase property. It may also arise by operation of law after the dissolution of the matrimonial relationship by divorce (co‑ownership of the former community property) or by death (co‑ownership of the undivided estate).
15 Regulation 2016/1103 has been applicable between some of the Member States, including the Czech Republic, since 29 January 2019. See, as regards the transitional provisions of that regulation and the date on which that regulation became applicable, Articles 69 and 70 and Joubert, N., ‘La dernière pierre (provisoire ?) à l’édifice du droit international privé européen en matière familiale’, Revue critique de droit international privé, No 1, Dalloz, Paris, 2017, pp. 1-26, paragraph 10 on the reference to that date for judicial proceedings and marriage.
16 See, to that effect, judgments of 16 June 2016, Universal Music International Holding (C‑12/15, EU:C:2016:449, paragraph 44 and the case-law cited), and of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraphs 41 to 43 and the case-law cited).
17 See footnote 8 of this Opinion.
18 As regards the criterion of the organisation of the matrimonial property regime, which characterises the concept of a ‘matrimonial property agreement’, taken from the wording of Article 3(1)(b) of Regulation 2016/1103, which has the effect of excluding ad hoc contracts concluded between spouses from its scope, see Ancel, B., ‘Article 3’, in Corneloup, S. et al., Le droit européen des régimes patrimoniaux des couples: commentaire des règlements 2016/1103 et 2016/1104, Société de législation comparée, Paris, 2018, pp. 34-42, especially paragraph 7.ii. See also Wautelet, P., ‘Article 3. – Definitions’, in Bonomi, A., Wautelet, P., Le droit européen des relations patrimoniales de couple: Commentaire des Règlements (UE) 2016/1103 et 2016/1104, Bruylant, Namur, 2021, pp. 209-346, paragraph 147 et seq., especially paragraphs 156, 177 and 180.
19 See, inter alia, Erbarth, A., ‘Die Auswirkungen der EuGüVO auf das Internationale Privatrecht und die Internationale Zuständigkeit der Wirkungen der Ehe im Allgemeinen ((§§ 1353 ff. BGB)’, Neue Zeitschrift für Familienrecht, C.H. Beck, Munich, 2018, No 6, pp. 249-253, especially p. 252, and Looschelders, D., ‘Art. 1 EuGüVO Anwendungsbereich’, especially paragraph 1, entitled ‘Eheliche Güterstände’, of II, entitled ‘Sachlicher Anwendungsbereich’, in Münchener Kommentar zum BGB, Vol. 12, C.H. Beck, Munich, 2024, paragraph 8.
20 See point 7 of this Opinion.
21 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6).
22 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40).
23 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L 343, p. 10), commonly referred to as ‘Rome III’.
24 C‑558/16, ‘the judgment in Mahnkopf’, EU:C:2018:138.
25 See judgment of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraphs 51 to 53).
26 See Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships (OJ 2016 L 159, p. 16). The following Member States do not participate therein: the Kingdom of Denmark, the Republic of Estonia, Ireland, the Republic of Latvia, the Republic of Lithuania, Hungary, the Republic of Poland, Romania and the Slovak Republic. The number of States participating in enhanced cooperation is also limited in the context of the Rome III Regulation, but it does not correspond to that concerning Regulation 2016/1103.
27 See, to that effect, the Opinion of Advocate General Szpunar in Mahnkopf (C‑558/16, EU:C:2017:965, point 73).
28 See Articles 10 and 11 of Regulation 2016/1103 and recital 40 in the preamble thereto.
29 See, on the ‘erga omnes’ application of the rules on jurisdiction in Regulation 2016/1103, Bonomi, A. and Wautelet, P., ‘Introduction’, in Bonomi, A. and Wautelet, P., op. cit., pp. 21-106, paragraph 74 and reference to the judgment of 1 March 2005, Owusu (C‑281/02, EU:C:2005:120).
30 See Article 20 of Regulation 2016/1103, which provides that those rules are universally applicable.
31 Concluded in The Hague on 14 March 1978 (‘the Hague Convention of 1978’). That convention, ratified by the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, entered into force on 1 September 1992. See, with regard to that convention, Niboyet, M.-L., de Geouffre de la Pradelle, G. and Fulli-Lemaire, S., Droit international privé, 8th edition, LGDJ, Paris, 2023, section 4 of the part ‘Premiers repères’, entitled ‘Rapports de famille patrimoniaux’, pp. 126-142, especially paragraph 138 et seq. and, for a comparison between that convention and Regulation 2016/1103, paragraph 141 et seq. As regards relations with existing international conventions, see Article 62 of that regulation. Finally, on the drafting history of the definition of ‘matrimonial property regime’, see Wautelet, P., ‘Article 3. – Definitions’, op. cit., paragraph 59 et seq.
32 See Lagarde, P., Bergquist, U. et al., Commentaire des règlements européens sur les régimes matrimoniaux et les partenariats enregistrés, 2nd edition, Dalloz, Paris, 2018, paragraphs 1.7 and 1.8 (pp. 32-33).
33 See Lagarde, P., Bergquist, U. et al., op. cit., paragraph 1.8 (p. 33). According to Andrea Bonomi, ‘Article 1. – Champ d’application’, in Bonomi, A. and Wautelet, P., op. cit., pp. 107-201, especially paragraph 10, ‘those exclusions are merely negative limitations on the scope of [Regulation 2016/1103], which is defined principally by the positive concept of matrimonial property regimes … Consequently, matters not falling within that concept lie outside the scope of application [of that regulation] even if they are not mentioned in Article 1(2) [of that regulation]’. See by way of illustration Wautelet, P., ‘Article 3. – Definitions’, op. cit., on relations between spouses and legal persons, paragraphs 132 to 139.
34 Emphasis added. According to Patrick Wautelet, ‘Article 3. – Définitions’, op. cit., paragraph 80, the term ‘rules’, which also appears in recital 18 of Regulation 2016/1103, does not reflect an intention to adopt a definition that would depart from the usual approach in private international law if it were not a functional definition (see, as regards such a method, which consists in ‘examining the function and objectives pursued by an institution or a mechanism established by a national law’, ibid., paragraphs 78 and 79). See, by way of comparison, Article 3(1)(a) of Regulation No 650/2012. In my view, lessons must be drawn from the Court’s case-law on the scope of the Convention on jurisdiction and the enforcement of judgements in civil and commercial matters, signed in Brussels on 27 September 1968 (OJ 1978 L 304, p. 36), as amended by subsequent conventions relating to the accession of new Member States to that convention (OJ 1998 C 27, p. 1) (‘the Brussels Convention’), and from the regulations which succeeded it, as regards matters relating to matrimonial property regimes. It follows from that case-law that the Court has examined the nature of the proprietary legal relationships between the parties to the dispute, or the subject matter of that dispute, in order to determine whether or not they are connected with the marriage. See the judgment in de Cavel (paragraph 7), and judgment of 31 March 1982, W. (25/81, EU:C:1982:116, paragraphs 7 and 8), and the order in Iliev (paragraph 30). The Court has also given rulings taking into account the aim pursued by the decision or rule at issue (see, respectively, judgments of 27 February 1997, van den Boogaard (C‑220/95, EU:C:1997:91, paragraph 22), and in Mahnkopf (paragraph 40)). In the present case, it is necessary to examine, in the particular legal situation of a co‑ownership arrangement between spouses, whether, having regard to the purpose of the law relied upon, the dispute falls within the scope of Regulation 2016/1103 or whether it is excluded by reason of one of the categories of rights listed in Article 1 of that regulation.
35 In so far as the Brussels I bis Regulation repealed and replaced Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which itself replaced the Brussels Convention, the Court’s interpretation of the provisions of the two latter legal instruments also applies to the interpretation of the Brussels I bis Regulation whenever those provisions may be regarded as ‘equivalent’ to those of that latter regulation. See, inter alia, judgment of 16 May 2024, Toplofikatsia Sofia (Concept of the defendant’s domicile) (C‑222/23, EU:C:2024:405, paragraph 49 and the case-law cited).
36 In that case, the subject matter of the dispute was the enforced settlement on a provisional basis of proprietary legal relationships between spouses in the course of those proceedings. See the judgment in de Cavel (paragraph 7, first subparagraph).
37 The judgment in de Cavel (paragraph 7, second to fourth subparagraphs).
38 See the order in Iliev (paragraph 30). In that regard, Dirk Looschelders, ‘Internationale Zuständigkeit für die Auseinandersetzung von Miteigentum bei ehegüterrechtlichem Bezug’, Praxis des internationalen Privat- und Verfahrensrechts, 2018, Gieseking, Bielefeld, No 6, pp. 591-594, especially pp. 593 and 594, states that the dissolution of the marriage under Bulgarian law, which was the law applicable in that case, directly entailed only the creation of a co‑ownership arrangement, and that the dispute concerning the division of that arrangement was merely an indirect consequence of the divorce. He concludes that the fact that the creation of that co‑ownership arrangement between the former spouses arises from features of their matrimonial property regime is merely a preliminary issue, which does not preclude the application of the Brussels I bis Regulation. However, he considers that, from the perspective of EU law, what matters is solely whether the division of the co‑ownership arrangement is prompted by the dissolution of the marriage or whether it is unrelated to it, and that the fact that that division falls within the scope of property law does not prevent it from being classified as a matter of matrimonial property regimes. That observation may be inferred from the finding that the Court’s answer to the questions on the division of the property focuses on the liquidation of that property (see the order in Iliev, paragraphs 19 and 22).
39 See the order in Iliev (paragraph 15, cf. paragraphs 10 and 11, and paragraph 22).
40 See, for reservations of a similar nature, Farnoux, E., ‘Improbable retour en grâce de la théorie générale des conflits de juridictions: naissance d’une règle de compétence purement internationale s’agissant d’une action en partage d’un bien immobilier situé en France’, Revue critique de droit international privé, No 1, Dalloz, Paris, 2021, pp. 106-127, especially pp. 125 and 126.
41 At the hearing, it was even argued that the proposed acquisition of the co-owned property arose before the marriage and was completed shortly after the matrimonial property regime was chosen.
42 See the judgment in de Cavel (paragraph 7, third subparagraph) and point 46 of this Opinion.
43 See the judgment in de Cavel (paragraph 7, second subparagraph). The third subparagraph of paragraph 7 of that judgment refers to disputes which concern or are closely connected with ‘proprietary legal relationships between spouses resulting directly from the matrimonial relationship or the dissolution thereof’ (emphasis added).
44 See the Schlosser Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice (OJ 1979 C 59, p. 71) (‘the Schlosser Report’), paragraph 50. See, on the connection with that report, Farnoux, E., op. cit., p. 125.
45 Schlosser Report (paragraph 50).
46 See the Schlosser Report (paragraph 43).
47 Ibid., paragraph 43.
48 Ibid. (paragraphs 45 and 46).
49 See Wautelet, P., ‘Article 3. – Definitions’, op. cit., paragraph 64.
50 See point 48 of this Opinion.
51 Emphasis added. I would point out that the criteria used in the judgment in de Cavel (paragraph 7) are set out as follows: disputes which concern or are closely connected with proprietary legal relationships resulting directly from the matrimonial relationship or the dissolution thereof.
52 See Looschelders, D., ‘Art. 1 EuGüVO Anwendungsbereich’, op. cit., paragraph 10. According to that author, the fact that that criterion appears only in a recital supports a reading according to which the direct nature of the connection is not central to the definition of the concept of a ‘matrimonial property regime’.
53 See the Spanish- (‘como resultado’), German- (‘aufgrund’), English- (‘as a result’), Italian- (‘in conconguenza’) and Polish- (‘wynikających’) language versions that I have been able to verify.
54 See point 47 of this Opinion.
55 See recital 8 of Regulation 2016/1103.
56 See recitals 15 and 16 of Regulation 2016/1103.
57 See Articles 21 and 27 and recital 52 of Regulation 2016/1103.
58 See Article 22 of Regulation 2016/1103.
59 See Article 26 of Regulation 2016/1103.
60 See Article 28 and recital 52 of Regulation 2016/1103.
61 See Article 21 of Regulation 2016/1103.
62 See also, in the event of pending proceedings concerning the succession of a spouse, recital 33 of Regulation 2016/1103, and, in the event of pending proceedings concerning the matrimonial relationship, recital 34 of that regulation.
63 See Looschelders, D., ‘Internationale Zuständigkeit für die Auseinandersetzung von Miteigentum bei ehegüterrechtlichem Bezug’, op. cit., especially pp. 591 and 594.
64 See Article 10 of Regulation 2016/1103.
65 C‑605/14, ‘the judgment in Komu and Others’, EU:C:2015:833.
66 That article provides that, in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated are to have exclusive jurisdiction, regardless of domicile. That provision was reproduced in the first subparagraph of Article 24(1) of the Brussels I bis Regulation. As regards the interpretation of that article, see point 83 of this Opinion.
67 See the judgment in Komu and Others (paragraphs 13 to 15).
68 See the judgment in Komu and Others (paragraph 28).
69 See the judgment in Komu and Others (paragraph 30).
70 See Article 26 of Regulation 2016/1103, which refers to the spouses’ first common habitual residence.
71 See, in that regard, Chikoc Barreda, N., ‘Entre la lex causae et les lois de police de la lex fori: quelle alternative pour la protection du logement familial dans le règlement “régimes matrimoniaux” ?’, European Review of Private Law, No 3, Kluwer Academic Publishers, Dordrecht, 2019, pp. 583-615, especially paragraph 4. The author highlights (in paragraph 5) the difference with the Hague Convention of 1978. In the absence of a choice of law, Article 26 of Regulation 2016/1103 provides that the applicable law is to be the law of the State of the spouses’ first common habitual residence after their marriage, which is not without its drawbacks for married couples who move between countries (paragraph 6).
72 See also, Erbarth, A., op. cit., p. 252.
73 See Article 21 and recital 43 of Regulation 2016/1103. As regards the difference with the Hague Convention of 1978 and as regards the analogous choice of law in Regulation No 650/2012, see Wautelet, P., ‘Article 22. – Choix de la loi applicable’, in Bonomi, A. and Wautelet, P., op. cit., pp. 577-676, paragraphs 79 and 81.
74 See recital 18 of Regulation 2016/1103. Nathalie Joubert, op. cit., paragraph 16, observes that including the primary regime makes it possible to unify the law applicable to all of a couple’s property relationships, including where the designated law does not recognise the very concepts of a ‘matrimonial property regime’ and a ‘primary regime’, which is a major difference with the Hague Convention of 1978. Furthermore, it should be noted that such a primary regime applies to all spouses, regardless of the matrimonial property regime, including the separate property regime.
75 Those matters are excluded from the scope of Regulation 2016/1103 (see Article 1(2)(c) and (f) of that regulation). According to Johannes Weber, ‘Die Europäischen Güterrechtsverordnungen: Eine erste Annäherung’, Deutsche Notar-Zeitschrift, 2016, No 9, pp. 659 to 697, especially p. 665, ‘the matrimonial property regime thus takes on a “backstop” function as the general rule of international family property law’.
76 See Article 1(2)(d) of Regulation 2016/1103 and the judgment in Mahnkopf (paragraph 41). See also footnote 85 of this Opinion.
77 See Bonomi, A., ‘Article 1. – Champ d’application’, op. cit., paragraph 3; Wautelet, P., ‘Article 27. – Portée de la loi applicable’, in Bonomi, A. and Wautelet, P., op. cit., pp. 845-915, paragraph 6; Lagarde, P., Bergquist, U. et al., op. cit., paragraph 3.2 (p. 40); Gallant, E., ‘Union européenne. – Règlements no 2016/1103 et 2016/1104 sur les régimes matrimoniaux et les régimes partenariaux’, JurisClasseur Procédure civile, LexisNexis, Paris, 17 June 2021, section 3000-80, paragraph 43, and Weber, J., op. cit., p. 665. See, to that effect, the Opinion of Advocate General Szpunar in Mahnkopf (C‑558/16, EU:C:2017:965, point 76 and, as regards the criterion of the division of property between the spouses, point 91).
78 See Mankowski, P., ‘Verschiebungen bei der Qualifikation vermögensrechtlicher Beziehungen zwischen den Ehegatten durch die EuGüVO’, Neue Zeitschrift für Familienrecht, C.H. Beck, Munich, 2021, No 17, pp. 757-764, especially p. 758.
79 To the same effect, as regards the regime of co-ownership between spouses who are subject to a separate property regime, for matters relating, for example, to debts associated with co-ownership or to compensation for a co-owner, see Wautelet, P., ‘Article 27. – Portée de la loi applicable’, op. cit., paragraph 67.
80 See Godechot-Patris, S., ‘Règlementation depuis le 29 janvier 2019’, JurisClasseur Notarial Formulaire, LexisNexis, Paris, 15 September 2023, section 320, paragraph 111, and Wautelet, P., ‘Article 27. – Portée de la loi applicable’, op. cit., paragraph 74. As regards the general law rules applicable to co‑ownership, those authors express doubts, referring to the law of the place where the property is situated. As regards the recommendation of a case-by-case approach, see Wautelet, P., ‘Article 1 – Champ d’application’, in Bonomi, A. and Wautelet, P., op. cit., paragraphs 176 and 177.
81 See Hausmann, R., Internationales und Europäisches Familienrecht, 3rd edition., C.H. Beck, Munich, 2024, paragraph 355. See also Godechot-Patris, S., ‘Compétence juridictionnelle en matière d’action en partage d’un immeuble situé en France’, Revue Juridique Personnes et Famille, No 5, Lamy, Paris, 2020. See also point 86 of this Opinion regarding the connection that may be made with Article 29 of Regulation 2016/1103. Consequently, in the absence of a matrimonial relationship, termination of co-ownership falls within the scope of the Brussels I bis Regulation. See, lastly, point 68 of this Opinion regarding the family home.
82 See Mankowski, P., op. cit., p. 758. That author states, however, that the existence of a monetary claim by one spouse against the other is not sufficient in itself to classify it as matrimonial if that claim has no connection with the matrimonial property regime.
83 For unmarried couples, see Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (OJ 2016 L 183, p. 30).
84 Judgment of 7 April 2022, V A and Z A (Subsidiary jurisdiction in matters of succession) (C‑645/20, EU:C:2022:267, paragraph 21, cf. paragraphs 37, 38, 44 and 45). The Court held that it follows from that principle that a rule of national law whose main purpose is to determine the size of the share of the estate to be allocated to the surviving spouse as against the other heirs and not to the allocation of assets between the spouses falls within the scope of Regulation No 650/2012. See the judgment in Mahnkopf (paragraph 40). I infer from this that, by virtue of that principle, the division of co-owned estate between a surviving spouse and the heirs of the deceased spouse should also be governed by Regulation No 650/2012. See Lardeux, G., ‘De certaines hypothèses délicates du droit international privé des immeubles’, Journal du droit international (Clunet), LexisNexis, Paris, No 4, 2021, pp. 1259-1275, footnote 28, and Péroz, H. and Fongaro, É, ‘Mai 2019-mai 2020: le droit international privé n’est pas près d’être confiné’, Droit et Patrimoine, No 304, Lamy, Paris, 2020, especially Part III, on ‘obligations and assets’.
85 See judgment of 26 March 2026, Isergartler (C‑618/24, EU:C:2026:251, paragraph 43 and the case-law cited). The Court justified its decision by referring to the ‘the principle of a single estate, given concrete expression in, inter alia, Article 23(1) of Regulation No 650/2012, which states that the applicable law under that regulation is intended to govern “the succession as a whole”’ (emphasis added). As regards that relationship between the applicable law and jurisdiction, see Péroz, H. and Fongaro, É, op. cit.. Hélène Péroz notes that the sharing-out of the estate is referred to only in Article 23(2)(j) of Regulation No 650/2012, which concerns the scope of the applicable law and not the rules on the jurisdiction of the courts. She considers, however, that, although that regulation applies to the law applicable to the sharing-out of the estate, the rules of jurisdiction laid down in that regulation apply a fortiori to that matter. As regards the analogy with Article 23(2)(e) and (j) of that regulation, see also Looschelders, D., ‘Internationale Zuständigkeit für die Auseinandersetzung von Miteigentum and ehegüterrechtlichem Bezug’, op. cit., p. 594.
86 See Bonomi, A. and Wautelet, P., ‘Introduction’, op. cit., paragraph 38, and Bonomi, A., ‘Article 21. – Unité de la loi applicable’, in Bonomi, A. and Wautelet, P., op. cit., paragraph 5.
87 See Bonomi, A. and Wautelet, P., ‘Introduction’, op. cit., paragraphs 43 and 60.
88 See Article 21 of Regulation 2016/1103, which does not contain any restriction on the nature and location of the assets.
89 It seems to me that a comparison can be made with the criteria for the liquidation of a community of property under Czech law. See the information provided pursuant to Article 63 of Regulation 2016/1103, available at the following internet address: https://e-justice.europa.eu/topics/family-matters-inheritance/property-marriage-civil-partnerships/matrimonial-property-regimes/cz_en. See also, as regards Czech legislation on the liquidation of the separate property regime, Zuklínová, M., ‘§ 729’, in Zuklínová, M. et al., op. cit., especially III concerning the common rights and obligations of spouses under the separate property regime. For a summary of French law, in particular on the liquidation of the separate matrimonial property regime and the matrimonial property regime in respect of co‑owned property, see Collard, F., op. cit., paragraph 18 et seq.. Patrick Wautelet has noted that the existence of a co-ownership arrangement between two (former) spouses gives rise to particular questions which are addressed in the specific law governing the property relationships of couples (‘Article 1. – Champ d’application’, op. cit., paragraph 176, and ‘Article 27. – Portée de la loi applicable’, op. cit., paragraph 67).
90 See, in particular, Article 24(1) of the Brussels I bis Regulation and Article 1(2)(g) and (h) of Regulation 2016/1103.
91 See point 40 and footnote 34 of this Opinion.
92 To the same effect, see Wautelet, P., ‘Article 1. – Champ d’application’, op. cit., paragraph 130, which suggests taking into account the various links and interactions between the law governing rights in rem, on the one hand, and the law applicable to the property relationships of couples, on the other, in order to determine precisely the scope of the exclusion laid down in Article 1(2)(g) of Regulation 2016/1103.
93 See Wautelet, P., ‘Article 1. – Champ d’application’, op. cit., paragraphs 129 and 181. In paragraph 129, he notes that ‘questions of ownership and appropriation are central and structure the law governing property relationships’, and, in paragraphs 173 and 177, he notes that co‑ownership is governed by rules which form an important part of the law governing rights in rem, which does not, however, automatically exclude the application of Regulation 2016/1103.
94 See Article 24(1) of the Brussels I bis Regulation and Article 1(2)(k) of Regulation No 650/2012.
95 As regards the difficulty in some cases of determining whether a right belongs to the category of rights in rem referred to in Article 29 of Regulation 2016/1103, see Wautelet, P., ‘Article 29. – Adaptation des droits réels’, in Bonomi, A. and Wautelet, P., op. cit., pp. 993-1023, paragraph 23.
96 See, to that effect, judgment of 17 May 1994, Webb (C‑294/92, EU:C:1994:193, paragraph 14), and the judgment in Komu and Others (paragraph 26 and the case-law cited). See, for example, judgment of 10 July 2019, Reitbauer and Others (C‑722/17, EU:C:2019:577, paragraph 45).
97 See the Schlosser Report (paragraph 166) and judgments of 10 January 1990, Reichert and Kockler (C‑115/88, EU:C:1990:3, paragraph 12), and of 10 July 2019, Reitbauer and Others. (C‑722/17, EU:C:2019:577, paragraph 48).
98 See judgment of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraph 47). The Court inferred that definition from the explanatory memorandum to the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (COM (2009) 154 final), p. 5. In the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2016) 106 final), it is stated, as regards Article 1, that that ‘regulation does not affect the nature of rights in rem relating to property, the classification of property and rights, nor the determination of the prerogatives of the holder of such rights’, paragraph 5.1 (p. 7).
99 See judgment of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraph 48). The Court relies on the explanations given in recital 15 of Regulation No 650/2012, which are set out in the same terms in recital 24 of Regulation 2016/1103.
100 Similar provisions appear in Article 31 of Regulation No 650/2012, the scope of which was defined by the Court in the judgment of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraph 63), as being limited to the content of rights in rem and their reception in the legal order of the Member State in which they invoked. That article cannot be applied where the right in rem transferred by a legacy ‘by vindication’ is a right of ownership and where the Member State which must recognise its effects acknowledges the right in question (paragraphs 64 and 65 of that judgment).
101 See Wautelet, P., ‘Article 1. – Champ d’application’, op. cit., paragraph 174 and case 14.
102 See recital 52 of Regulation 2016/1103. See, also, Wautelet, P., ‘Article 1. – Champ d’application’, op. cit., paragraphs 176 and 177.
103 See Wautelet, P., ‘Article 29. – Adaptation des droits réels’, op. cit., paragraph 26. See also, as regards the principle that matters concerning the termination of co‑ownership between spouses should be addressed through a combined reading of Articles 27 and 29 of Regulation 2016/1103 – a principle that would, however, need to be qualified where no distinction is drawn between the law governing the matrimonial property regime and the general law of co‑ownership – Godechot‑Patris, S., ‘Article 27’, in Corneloup, S., et al., op. cit., pp. 267-281, in particular paragraph 39.
104 See Wautelet, P., ‘Article 1. – Champ d’application’, op. cit., paragraphs 131 to 133.
105 Ibid., paragraph 179. See, also, Looschelders, D., ‘Art. 1 EuGüVO Anwendungsbereich’, op. cit., 2024, paragraph 11.
106 See recitals 27 and 28 of Regulation 2016/1103. Moreover, in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced have exclusive jurisdiction. See Article 24(5) of the Brussels I bis Regulation. According to the judgment of 26 March 1992, Reichert and Kockler (C‑261/90, EU:C:1992:149, paragraphs 26 and 27), which is based on the report of P. Jenard on the Brussels Convention (OJ 1979 C 59, p. 1), those proceedings must be closely connected with ‘recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments’.
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