Rechtswahl und Ehevertrag: Zum Formerfordernis nach Art. 15 Abs. 3 EGBGB" [Party autonomy and marriage contracts: On the form requirements of Art. 15 paragraph 3 of the Introductory Act to the German Civil Code]


Praxis des Internationalen Privat- und Verfahrensrechts

septembre 2004, vol. 25, pp.399-402

Départements : Droit et fiscalité

Marriage contracts change the statutory regime of matrimonial property regarded as fair and just by the national legislator. In order to protect spouses from imprudent waivers of their statutory rights, these contracts have to be concluded before a notary public in order to be valid in Germany. The rules of the matrimonial property regime, however, can also be changed in international cases by a stipulation on the applicable of the parties (e.g. choosing complete separation by opting for Monegasque law). German conflict of law rules determine that, if the spouses conclude such choice-of-law agreement abroad, the agreement has to meet the form requirements for concluding a marriage contract according to the law chosen by the parties or the law of the place at which it is concluded. Nevertheless, German scholars unanimously defend the possibility of also accepting a less onerous form for the choice-of-law agreement if on the chosen law or the law of the place of conclusion require a lighter form as compared to the conclusion of a marriage contract. This article shows that literal, contextual, historical, and teleological interpretation can hardly uphold the theory of a lighter form requirement that would treat marriage contracts and choice-of-law stipulations differently