Conflıct of laws ın matters concernıng matrımonıal property –perspectıves from European Unıon’s Rome IV regulatıon proposal and Chınese and Taıwanese new codes of prıvate ınternatıonal law
The Europeanization of family law matters attracts attentions of the entire world. It is not just because the European Union has just successfully harmonized the jurisdiction and recognition and enforcement problems both in civil, commercial and matrimonial regimes by the Brussels Regulations I and II, and has set conflict of laws rules in contractual and non-contractual obligations by the Rome Regulations I and II, but also because the varied possibilities of marriages, registered partners and cohabitation contracts in the European Union has increased the difficulties for the harmonization of conflict-of-law rules in family law and has created vivid possibilities for the probable norms, such as just showed in the recent Council Regulation No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Rome Regulation III). Following this trends for harmonization, in 2006 the European Commission published a Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition. Moreover, in March 2011, a Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (Rome Regulation IV Proposal) was just announced. As indicated in the Proposal of Rome Regulation IV, the basic rule for determining the jurisdiction for matrimonial matters would follow the principles of determination of jurisdiction for divorce, legal separations or marriage annulment proceedings (art.4); for the event of the death of one of the spouse, the court of a Member State for succession would have jurisdiction. Besides, for the conflict-of law rules, it follows the principle of party autonomy (art.16) for the matrimonial property; finally, for the recognition of decision would be allowed under some exceptions (art.27). This new proposal would facilitate the harmonization of conflict-of-law rules in European family laws, and also set some references for other countries. For example, both in 2011, China and Taiwan has just promulgated their new Codes of Private International Law (CPIL). Basically, both in China and in Taiwan, there’s no rule for the determination of jurisdiction in these Codes. For the applicable law to matrimonial property, both follow the principle of party autonomy, too. But in China, the choice of applicable law is limited among the law of habitual residence, lex partiae or the lex loci of the main property (art.24 of the CCPIL); in Taiwan, it will also be limited between lex partiae of lex domicilii (art.48 of the TCPIL) The reasons for these delicate differences in choice-of-law rule among the EU, China and Taiwan would be worthy of further analyses. So based on the European Union’s Proposal of Rome Regulation IV, Chinese CPIL and Taiwanese CPIL, this article would try to establish some cross-county comparative perspectives for the further harmonization in the global conflict of laws in matrimonial property.