Matrimonial property regimes (MPRs) may be somewhat unfamiliar to UK Wills and probate solicitors unless they specialise in international probate. This is because they are not legally recognised in England, Scotland, Wales or Northern Ireland.

However, MPRs are used in various foreign countries and may be relevant to the Wills and inheritance planning of UK nationals and other UK-interested individuals who have property and assets in a country where MPRs form part of the law.

Inevitably, such property regimes are also relevant to any international probate or divorce proceedings that may arise as a result of the affairs of cross border individuals. As such, it is useful to be familiar with the concept of the matrimonial property regime if it is likely to affect your situation in the future.

What is a matrimonial property regime in international probate

An MPR is a contract made between couples in certain countries which determines the handling of matrimonial assets on death or divorce (and in some instances the breakdown of a civil partnership).

When cross border individuals marry and reside outside of the UK, MPRs are often the statutory default in the country where the marriage takes place.

As a concept, they are similar to the premise of joint tenants in the UK and usually take effect before assets are transferred as a result of estate administration or according to a Will. The different types of regime bear similarities to the handling of property matters in the UK; for example, separation of property is similar to tenancy in common, while universal community of property is similar to joint tenancy, and some MPRs are a combination of the two.

More about EU matrimonial property regimes

Most EU states have some form of matrimonial property regime in place. In general, these MPRs will provide rules covering at least some of the following:

  • Economic relations between spouses and any relevant third parties.
  • The separate ownership of property.
  • The sharing of assets or property on death.
  • Community of Property Rules state that marital property is owned jointly and equally, with the exception of inheritance and gifts.
  • Absolute Community of Property rules state that all property within a marriage is jointly owned.

How does it work in the UK

Without any official matrimonial property regimes in the UK, it is essentially up to the courts to decide who gets what on divorce (if the couple cannot agree themselves) and on the death of one spouse, the Will decides who gets what (although the court will decide if there is a probate dispute and in the event of intestacy).

For example, in one notable 2007 case, a judge at the Court of Appeal, Sir Mark Potter stated: “We have no [MPR], simply accepting that each spouse owns his or her own separate property during the marriage but subject to the court’s wide distributive powers in prospect upon a decree of judicial separation, nullity or divorce.”

International probate and divorce law for UK citizens with international interests

As MPRs are a feature of so many foreign jurisdictions, UK citizens and their solicitors should check whether they are bound by an MPR, particularly if they own overseas property and have entered into an MPR to avoid a country’s forced heirship rules.

In many cases, parties to a marriage may not even be aware of the existence and implications of any MPR in relation to their marriage. Once the full facts have been established, UK nationals can apply to have all their movable assets placed under UK law. Furthermore, as MPRs take precedence over Wills, it is essential that Wills solicitors know of their existence.