Marriage
Marriage is a national competence: age, banns and impediments remain domestic. The Union intervenes in two ways. Directive 2004/38/EC gives the spouse of a Union citizen, whatever their nationality, the right to reside with them in another member state. Regulation (EU) 2019/1111 provides for automatic recognition of judgments on matrimonial status. In Coman (2018) the Court of Justice held that spouse includes a same-sex spouse for the purposes of residence rights. The spouse of an EU citizen, whatever their nationality, has the right to live with them in another member state.
Regulation (EU) 2016/1191 abolished the apostille and sworn translation for civil status documents circulating between member states: a multilingual standard form accompanies the original and suffices.
Coman does not oblige a state to open marriage to same-sex couples: it only requires recognition of a marriage celebrated elsewhere so that the spouse may reside.
Key points
| Conditions of marriage | Remain national; the Union does not harmonise them |
|---|---|
| Spouse's residence | Directive 2004/38/EC, whatever the nationality |
| Recognition | Regulation (EU) 2019/1111 for matrimonial judgments |
| Coman judgment | A same-sex spouse is a spouse for residence rights (2018) |
| Formalities | Regulation (EU) 2016/1191: no apostille for civil status documents between member states |
Frequently asked questions
Does the Union set marriage conditions?
No. Age, impediments and procedure remain national.
Can my non-EU spouse join me?
Yes, Directive 2004/38/EC gives them a right of residence in the member state where you settle.
Is a same-sex marriage recognised everywhere?
Not as a marriage in every state, but Coman requires each to recognise the spouse for residence purposes.
Do I need an apostille for a birth certificate?
Not between member states, since Regulation (EU) 2016/1191 and its multilingual form.
The general article: Marriage · Compare with another country
Partnerships and cohabitation
The twin of the matrimonial property regulation designates the law governing the property consequences of a registered partnership and organises recognition of decisions.
Regulation (EU) 2016/1104, applicable since 29 January 2019 in the states taking part in the enhanced cooperation, determines the law applicable to the property consequences of registered partnerships. Absent a choice, it is the law of the state under whose law the partnership was created. Partners may choose the law of their residence, of their nationality or of the state of registration. The existence of the institution itself remains national, and several states do not have it.
The default connection to the state of registration is logical: without it, a partnership created in a state that recognises it could be governed by a law that does not.
The Regulation governs property consequences only. It does not oblige any state to create a registered partnership or to treat one concluded elsewhere as equivalent to marriage.
Key points
| Instrument | Regulation (EU) 2016/1104, applicable since 29 January 2019 |
|---|---|
| Default law | That of the state where the partnership was registered |
| Choice | Residence, nationality or state of registration |
| Existence | The institution itself remains a national matter |
| Limit | Several states have no registered partnership |
Frequently asked questions
Which law governs our partnership?
The one you chose; failing that, the law of the state where it was registered.
Does it force recognition of the partnership?
No. It deals with property consequences; existence and recognition remain national matters.
Can we choose another law?
Yes: habitual residence, the nationality of either partner, or the state of registration.
Are all member states bound?
No, only those taking part in the enhanced cooperation.
The general article: Partnerships and cohabitation · Compare with another country
Matrimonial property and inheritance
Since 29 January 2019 an international couple knows which law governs their matrimonial property — and can choose it.
Regulation (EU) 2016/1103, adopted under enhanced cooperation by eighteen states, applies to couples married from 29 January 2019 or who chose the applicable law after that date. Absent a choice, the law is that of the first common habitual residence after the marriage, then common nationality, then the closest connection. Spouses may choose the law of their residence or of the nationality of either of them, by formal agreement. A twin instrument, Regulation (EU) 2016/1104, does the same for registered partnerships. Ireland does not participate.
The Regulation ended a real uncertainty: a Franco-German couple living in Portugal previously had no clear answer, and it could vary with the court seised.
The connection to the first common residence is fixed: a later move does not change the regime unless the couple concludes an agreement. Many assume the opposite.
Key points
| Instrument | Regulation (EU) 2016/1103, applicable since 29 January 2019 |
|---|---|
| Default rule | First common habitual residence after the marriage |
| Choice available | Law of residence or of the nationality of either spouse |
| Form | Written, dated and signed agreement meeting the formal requirements |
| Partnerships | Twin Regulation (EU) 2016/1104 |
Frequently asked questions
Which law governs our matrimonial property?
The one you chose; failing that, the law of your first common habitual residence after the marriage.
Does moving change it?
No, unless you enter into an agreement designating another law.
Can we choose freely?
Between the law of habitual residence and the national law of either spouse, by a properly formed written agreement.
What about a registered partnership?
Regulation (EU) 2016/1104 applies, with parallel rules.
The general article: Matrimonial property and inheritance · Compare with another country
Divorce
Regulation (EU) 2019/1111, Brussels II ter, applicable since 1 August 2022, sets jurisdiction in matrimonial matters and parental responsibility and provides for automatic recognition of judgments across the Union. Regulation (EC) 1259/2010, Rome III, adopted under enhanced cooperation by seventeen states including France, Belgium, Germany and Austria, designates the law applicable to divorce and allows spouses to choose it. Ireland is not bound by Rome III, and Denmark by neither.
The rule that surprises most is lis pendens: the court seised first prevails. In a binational couple, the race to court often determines the applicable law and therefore the financial outcome.
Ireland did not opt into Rome III, so an Irish court applies Irish law to a divorce before it, whatever the couple's connections elsewhere.
Key points
| Jurisdiction | Regulation (EU) 2019/1111, applicable since 1 August 2022 |
|---|---|
| Applicable law | Regulation (EC) 1259/2010, enhanced cooperation |
| Choice of law | Spouses may designate the law governing their divorce |
| Recognition | Automatic within the Union, no exequatur |
| Children | Parental responsibility and child return covered by Brussels II ter |
Frequently asked questions
Which court has jurisdiction?
The one designated by Brussels II ter, usually the spouses' habitual residence or the respondent's; the court seised first prevails.
Can we choose the law of our divorce?
Yes in the states bound by Rome III, by written agreement. Ireland is not among them.
Is a divorce from another member state recognised?
Yes, automatically within the Union, with no recognition procedure.
Which states are outside?
Denmark is bound by neither instrument; Ireland is outside Rome III.