The new Spouse Act
On 1.1.2018, a new law regulating the assets of spouses entered into force in Denmark.
The new law entails changes that are of great importance especially for mixed marriages, in this connection the Danish-Italian couples.
When a Danish-Italian couple (or any couple where the parties do not have the same citizenship or reside in two different countries) decide to marry, it is very important to determine which law governs the property relationship between the spouses, as differences in the laws of the countries in the event of divorce or death can prove to have serious consequences, and this on top of that at a time when one or both spouses find themselves in a difficult and painful situation.
Applicable law before 1.1.2018
Before 1.1.2018, the applicable law was that the property relationship between the spouses was regulated by the law of the country where the husband had (real) residence at the time of the marriage, and this also applied to married couples who had moved to Denmark after the marriage, and who had lived in Denmark for the rest of their lives.
This meant that the property relationship of a Danish-Italian married couple, where the man had (real) residence in Italy at the time of the marriage, was regulated by Italian law.
In the case where the man was domiciled in Denmark and the woman in Italy at the time of the marriage, the property relationship, on the other hand, was regulated by Danish law.
The decisive factor was thus residence and not citizenship.
The current law
After 1.1.2018, the rules have been changed with retroactive effect.
According to the current ÆFL Section 64, the law that applies to the property relationship between the spouses is the law in force in the country where both parties were domiciled at the time of the marriage.
In the case where the parties were domiciled in different countries at the time of the marriage, the law of the country where the spouses had their first joint domicile applies.
If the spouses do not have a common residence, but continue to reside in different countries even after the marriage, then the law of the country where both spouses have citizenship is applied.
Should the spouses have different citizenships, the law of the country to which the parties have the closest connection is applied.
However, Danish law always applies if the married couple has lived in Denmark for the past 5 years.
It is now possible for the spouses to choose to let the law of the country where one of them lives or is a citizen at the time of the marriage regulate their property relationship, which was not possible under the previous legislation.
The choice must be made when drawing up the MARRIAGE COUNCIL. The prenuptial agreement must be valid according to the law of the country which regulates the property relationship between the spouses. For prenuptial agreements drawn up in Denmark, validity is conditional on the prenuptial agreement being signed by both parties and also registered in the personal register.
Decisive differences in Italian and Danish property relationships between spouses
Differences in the Italian and Danish financial situation are decisive, and lack of knowledge of this can lead to very serious consequences for one party, often the Italian one.
According to Italian law, everything the spouses acquire during the marriage is joint property and must thus be divided between the parties in the event of separation and divorce, while everything the spouses owned BEFORE the marriage, as well as everything the spouses acquire during the marriage as an inheritance and gift, is their separate property and must thus not shared in the event of separation or divorce, unless the testator or the donor has decided otherwise in the will or gift document.
According to Danish law, on the other hand, everything that the spouses own, both what was acquired before and during the marriage and what was acquired as a result of a gift or inheritance, is joint property and must be divided in connection with separation or divorce.
However, the following are excluded:
- What is acquired by gift or will, if the donor or testator has decided that everything that heirs inherit from him or receive as a gift is separate property
- Pensions with regular payments
- Rights of a personal nature which, by their nature, cannot be divided
- Maintenance received by the other spouse
If the spouses wish to change the above arrangement, they must draw up a prenuptial agreement.
The following example can illustrate the problem:
Antonio, who is an Italian citizen residing in Italy, marries Gitte, who is Danish, and after the marriage they move to Denmark.
A lawyer explains to them that their property community is governed by Italian law, as Antonio was domiciled in Italy at the time of the marriage.
This answer is crucial for Antonio, as his family owns some real estate in Italy, which must “remain in the family”, i.e. that the properties should be inherited by Antonio and later by his children.
Therefore, Gitte and Antonio decide NOT to write a prenuptial agreement. Antonio’s parents pass away and Antonio is now the owner of real estate in Italy of considerable value. The marriage with Gitte is no longer happy, and the couple decide to divorce.
Divorce application will be sent after 1.1.2018.
A dull surprise awaits Antonio, however. The answer he once received from his lawyer is no longer valid: the couple’s assets are now regulated by Danish law, and therefore everything the parties own, both what was acquired during the marriage and what the parties owned before, is now considered the conclusion of the marriage, as well as everything received by inheritance and gift, as joint property, and thus everything that Antonio owns in Italy must be shared with Gitte in the event of a divorce.
Unfortunately, very few Danish-Italian couples turn to a lawyer before the marriage, but only in case of divorce when it is too late to avoid similar very unpleasant situations, which for many Italian families is a real nightmare.