Entre la lex causae et les lois de police de la lex fori: quelle alternative pour la protection du logement familial dans le règlement « régimes matrimoniaux »?

Abstract

The law applicable to the matrimonial property regime under Regulation 2016/1103 governs all the property relations between the spouses and with regard to third parties including the rules providing for the protection of the family home. The choice of law rules of the Regulation are based on the principle of party autonomy and on the need to ensure the predictability of the applicable law, to the detriment of the links connecting the current situation of the spouses with the law intended to govern it. Against the background of an increasing cross-border mobility, the connecting factors of the objective conflict rule, fixed at the time of the conclusion of the marriage, prove to be unsuitable with regard to the protective rules of the family home whose implementation would command the application of the law having the closest connection to the real situation of the spouses. In this context, the exceptional mechanisms consisting in the escape clause and in the overriding mandatory provisions of the lex fori are also inadequate to ensure the effectiveness of the protective measures of the family home under the lex situs.