| The revolution of American conflict of laws in the20thcentury, scholars focusedon the areas of the conflict of laws on contract and the conflict of laws on torts, theconflict of laws on matrimonial property is rarely mentioned. This situation occursbecause the marriage has long been regarded as an important method of maintainingsocial stability and linked with national interests. To the parties of marriagerelationship, it’s difficult for them to make a decision of splitting marital propertyupon divorce. In addition, the civil law system and common law system insist onnationality and domicile which are different connection points and difficult toreconcile. The identity nature of marriage and different attitude of two systemstowards the connection point of lex personalis caused the research of the lawapplicable to the marital property relations in the edge position. With the developmentof the principle of party autonomy in the marital property relations and the change ofthe connection point of lex personalis, the phenomenon of lacking research hastransformed. Since the1970s, the party autonomy of marital property relationship hasbeen accepted and recognized in most countries; in the aspect of the connection pointof lex personalis, the emergence of habitual residence also to some extent reconcilescontradictions between the civil law system and common law system. Although theparty autonomy and lex personalis has widely been accepted, the development trendof the party autonomy and its limitation as well as whether domicile has been replacedby habitual residence in the field of marital property relations all that need further research from theoretical and practical point of view.This paper is divided into five chapters, the main contents include: the legalconflicts of marital property relations and their solutions; the contractual lawapplicable to the marital property relations and its limitations; the localization lawapplicable to the marital property relations; the identification law applicable to themarital property relations; the development trends of the law applicable to the maritalproperty relations.The first chapter is about the legal conflicts of marital property relations andtheir solutions. The conflict of laws arises because of the different provisions on thesame legal relationship, based on this concept, the author considers the reasons for theemergence of of conflict of laws are: different methods of applying law; differentlegal origins in applying law and foreign laws having extraterritorial effect. Theconflict of laws of marital property relationship has dissimilar characteristics atdifferent stages, from the initial conflict of laws between national law and theselective law through party autonomy to the national law and lex domicilii in lexpersonalis, then to the conflict of laws of lex domicilii and so on. These conflicts oflaws in different stages show the principle of territory, the principle of personal lawand party autonomy will be differently emphasized, and the leading factors behind itare: varied legal provisions, cultural tradition and democratic political power. Theconflict of laws of marital property relationship can be solved from the followingpathes: first, the path of Hague International Convention; secondly, the path of EUregional regulation; thirdly, the path of substantive law.Compared to the first two paths, coercive power of EU regional regulation issignificantly higher than Hague International Convention, but as regional regulation,its role in unifying the the law applicable to the marital property relations remainslimited. In the aspect of substantive law, America focuses on protecting couple’sproperty rights, the civil law countries pay great attention to protect couple’s equalstatus, the different approaches show the disagreement between civil law countriesand common law countries in their substantive laws still exist.Although China’s Act of Applicable Law in Civil Relations with Foreign Contacts (hereinafter referred to “Applicable law Act”) has clearly stipulated the lawapplicable to the marital property relations, there still exist the problems of imperfectand blank legislation. For example, firstly, the law of our country has stricterrequirements in the form of spouse’ choice of law, namely which must be the way bysigning agreements; secondly, legislative blank of the transformation of spouse’choice of law, including whether this transformation has retroactive effect, thistransformation will affect vested property rights awarded by the previous law andwhether it will affect the rights of the third person; thirdly, legislative blank also existsin the relationships with the third person. Therefore, although the relevant provisionsof Applicable law Act have certain advancements of the times, there still existirrationality and incompleteness in the design of specific provisions which furtherneed to be perfect.The second chapter mainly discusses the contractual law applicable to the maritalproperty relations and its limitations. The contractual law applicable to the maritalproperty relations include the method, the time and the change of the choice of law,namely the parties may make the choice of law expressly or impliedly; the partiesmay sign marital agreement before or after marriage; the parties may through themarital property agreement alter the statutory matrimonial property system or defaultproperty system as long as the choice of the parties do not violate the mandatoryprovisions of the law.It should be emphasized that the presumption of the implied intention can bejudged by objective facts; prenuptial agreement and postnuptial agreement shouldapply uniform standard of review, and if the parties alter his own choice of law, thischoice of law should not damage the vested property rights of one or both of parties.Based on the identity or partnership nature of marital relations, the parties’ autonomyshould be subject to certain restrictions, the identity nature requires to consider certainpublic interests, while the partnership nature calls for the equal contributionsembodied in the marital agreement. Therefore, the civil law system and common lawsystem generally provide the restrictions to marital agreement, and the restrictivecontents of the two law systems are largely the same, including substance and procedure limitations.The problems occurring in China’s judicial practice are the restrictions of partyautonomy, the retroactivity of marital agreement and its alternation, the behavior ofreal estate gift and the relationship between marital agreement and the third person ofthe applicable law. Applicable law Act and its first judicial interpretation for theabove-mentioned problems both exist legislative gaps. In addition, legislation ofimplied presumption also exist the problem of ambiguity. Such problems oflegislation divorced from judicial practice need to be perfect from the perspective ofthe legislative and judicial interpretation.Firstly, concerning the retroactive effect and alternation of marital agreement, theeffect of postnuptial agreement can be traceable to the time of getting married, but thiskind of retroactive effect should be based on the express declaration of intention ofthe parties, at the same time the retroactivity should not damage the legitimate rightsand interests of the parties’ of marital agreement and the third person’s. The partiesmay alter marital agreement before marriage or after or before the end of thefirst-instance court debate, the altered marital agreement need to re-register ornotarize, otherwise it should not be used against any bona fides third parties.Secondly, the applicable law to the behavior of real estate gift in party’sagreement, the law selected by parties need to satisfy the actual transfer of registrationrequirements of the place of real property, otherwise invalid; and also need to considerthe applicable law under special circumstances, such as the other couple makingcontributions to purchase real estate and its added value, then compare the applicablelaw of contract and lex loci of the real estate which is more conducive to protect theweaker party in property relationship, to choose between the two.Thirdly, the applicable law to the relationship between marital agreement and thethird person, the marital agreement included the applicable law need to register ornotarize, otherwise it should not be used against any bona fides third parties. Whetherthe registered or notarized marital agreement is understood by the third person whichshould not have the spouse bear the burden of proof, but should be ascertained by thethird person through the open channels, so that it can balance the relationship between spouse and the third person.Fourth, the implied presumption of choice of law, the implied meaning shall bedetermined by courts according to the couple’s implied intention when the parties dieor divorce, which can be accomplished through the objective connection point,including domicile, nationality, place of habitual residence and place of property.Firth, about the limitation aspects of marital agreement, the substance limitationsof marital agreement need to consider the mandatory provisions related to maritalproperty relations; procedure limitations include the signature of both spouses, theguidance of independent legal advice and the registration of record of maritalagreement.The third chapter deals with the localization of the law applicable to the maritalproperty relations, namely the applicable law of lex situs of spouse, the common lawsystem adopt marital domicile as the connection point of lex personalis ofmatrimonial property relations, whereas the civil law system have increasinglyaccepted lex situs of habitual residence. Domicile in the common law system is stillvery important connection point, including in the identification of the identity ofperson’s, ability, such as the validity of marriage, marital property division upondivorce and movable property inheritance cases. From America’s legislative andjudicial practice, habitual residence substitute for domicile occurs only in limited areain international child abduction.The application of lex situs of spouse creates significant controversy in theoryand practice, including immutability and mutability, unity and scission of matrimonialproperty conflict rules. The immutability theory in the civil law system generally isbased on the spouse’ agreement(including express and implied agreement), namelythe vested property rights obtained according to original lex situs of spouse should notchange as the situs of spouse changes; the mutability theory especially the partialmutability theory in the common law system deem it necessary to balance theproperty interests of original and subsequent domicile. The immutability theoryconfronted the problem of how to ensure the property rights acquired in new domicile,the mutability theory is if the property rights obtained by original lex situs of spouse can be recognized by the court of new situs, and if involved the third person, then thiskind of property rights will damage the interests of him.The unity theory of the civil law system considers marital property has the natureof personalis, and its nature is different from the general property, so it needs to treatall marital property as a whole; whereas the common law system think eachjurisdiction of the immovable property has exclusive jurisdiction right, therefore, thecourt of having jurisdiction right will apply its own substantive law to the region’simmovable property. The question triggered by the unity theory is the judgment madeby the court of applying the unity theory difficult to recognize and enforce of thecountry of applying the scission theory, and the country of applying the scissiontheory also confront the problem of the distinction of movable and immovableproperty.Chinese Applicable law Act stipulates in the cases of no agreement of theapplicable law to the marital property relations, the law of habitual residence can beapplied, but its provisions are not perfect or explicit in the aspects of the identificationof habitual residence, whether the application of law changes as the habitual residencechanges and whether applying the unity theory and so on. In view of the aboveanalysis, our country’s legislation and judicial practice should not entirely employhabitual residence instead of domicile, particularly in the field of matrimonialproperty relations. If there exists the common marital domicile, then it should takeprecedence over spouse’ habitual residence; and if not, spouse’ habitual residence canbe applied instead. At the same time, Chinese Applicable law Act and first judicialinterpretation should have the concept of habitual residence consistent with theinternationally accepted concept, namely besides the longer-term residence(the firstjudicial interpretation of Applicable law Act requires1year term), it should also beinvestigated whether there exists the intention of long-term residence, which canprevent the uncertainty of the law application caused by frequent changing residenceof the parties. The application of law changes as the spouse’ domicile changes, andnew lex domicilii should pay attention to balance property interests of both sides.Between the original and new domicile, the court of new domicile needs to consider the different situations of the applicable law. For movable and immovable propertypurchased during the marriage, it is necessary to adhere to the qualitative anddistribution rules of lex loci of the real estate, and also need to determine whether theimmovable property funds derive from the movable property, the non-owner makescontribution to added-value immovable property and added-value of itself. Inapplying lex domicilii of couple(if not, habitual residence instead) to dispose anddistribute the community property, then considering if the surviving spouse is entitledto inherit the inheritance share of remaining property.The fourth chapter is the identification law applicable to the marital propertyrelations, namely the national law of couple. The application conditions of thenational law of marital property relations are the link between spouse and their nation,the state of nationality is the unified law state and the law of the state of nationalitystipulates the protection principle on spouse’ property right. Among them, the nationallaw applicable to marital property relations need further explanation, that is to say, thespouse’ national law reflects their respective cultural tradition and legal concept, withthe feature of diversity.The distinct provisions of national law on marital property system determinedifferent application method of national law, if a country provides the basic right ofspouse equality in its constitution, then it can make use of the reservation of publicorder to preclude the law that ought to be applied; if a country provides in its civil law,such as Marriage Law, Family Law, which stipulate the protection of the weaker partyin marriage, then their relevant provisions of civil law can supplement the blank rulesof the law applicable to the marital property relations.Combined with our legislative and judicial practice, the problems of the nationallaw applicable to the marital property relations are the conditions of applying thenational law ambiguous and the related system imperfect, including interregionalconflict of laws, mandatory application of the national law as well as itssupplementary application, and whether applying the national law meets therequirement that both spouses have common nationality and so on. First of all, in theaspect of applying the national law, it should expressly exclude interregional conflict of laws，the provisions can provide the issues of applicable law to civil relationsinvolved in Hong Kong and Macao Special Administrative Region, consult theprovisions of Applicable law Act, but except when applying the national law. Themandatory application of the national law as well as its supplementary applicationneed to satisfy different requirements, the former is to investigate whether exists theprovision of protecting marital property rights, and the latter is to study if there isspecial provision of protecting marital property rights in China’s civil law such asMarriage Law.The fifth chapter summarizes the development trend of the law applicable tomarital property relations. Due to being affected by different national legal system andcultural tradition, the law applicable to marital property relations has certaincharacteristic of nation-specific, in addition to national legislation, regional legislationand international conventions’ inadequate binding, which make the applicable law tothis field have the characteristic of fragmentation. Simultaneously, with the rapiddevelopment of economy, the convenience of transportation, transnational civil andcommercial exchanges have become increasingly frequent, the law applicable tomarital property relations also presents the characteristics of assimilation.Assimilation mainly is to respect the law chosen by the spouse and its restrictions oftheir party autonomy, every country agrees on the lex situs of spouse applicable tomarital property relations, and the constitution of federal countries imposes therestrictions on the conflict of laws etc.From the judicial practice of the law applicable to marital property relations, theboundary between movable and immovable property is fuzzy, the relations ofobligatory right, right in rem and tort are interwoven, the relationships of maritalproperty mingle with inheritance relationships, which make the law applicable tomarital property relations have the characteristic of certain complexity. |
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