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Abstract

Due to the fact that matrimonial property and inheritance issues are closely intertwined, in some situations the determination of rules which should be applicable to particular relationships seems problematic. This fully applies to marriage contracts which cover both types of issues. The presence of a cross-border element in such contracts raises the question of the delineation of the legal regimes of the Matrimonial Property Regulation and the Succession Regulation applicable to matrimonial property and succession issues respectively. This paper analyses the rules which should be applicable to choice-of-court agreements for matters arising out of marriage contracts which cover both matrimonial property and inheritance issues and include a cross-border element. For this reason, the paper reveals the interaction between the regimes of the Matrimonial Property Regulation and the Succession Regulation, and the requirements of choice-of-court agreements under both regulations. Some of the requirements of these regulations of choice-of-court agreements coincide (eg formal requirements), while others differ. The main differences include: the precondition for the conclusion of a choice-of-court agreement under the Succession Regulation, which is not required under the Matrimonial Property Regulation; the courts which may be chosen; and the circle of matters which can be resolved by the courts on the basis of the choice-of-court agreement. It is concluded that a choice-of-court agreement, included in the marriage contract, can meet the requirements of both the Succession Regulation and the Matrimonial Property Regulation if: the dispositions upon the death of a spouse, included in the marriage contract, are an ‘agreement as to succession’ in the meaning of Article 3(1)(b) of the Succession Regulation; the marriage contract includes a choice-of-law agreement in favour of the law of the Member State whose nationality a deceased spouse possessed when the choice-of-law agreement was concluded; this choice of law agreement covers the succession of the deceased spouse ‘as a whole’; the choice-of-court agreement grants jurisdiction to the courts of the Member State whose nationality a deceased spouse possessed at the time of the conclusion of the choice-of-law agreement; it provides the jurisdiction of ‘the courts’ of a Member State (not ‘a court’).

Keywords: choice-of-court agreement, EU Succession Regulation, EU Matrimonial Property Regulation, synchronisation between law and forum, agreement as to succession, matrimonial property agreement, marriage contract.