Law No. 1.448 of 28 June 2017 on private international law, published in the Journal of Monaco on 7 July 2017, substantially modified the rules of conflict of laws and jurisdictions existing before the reform. The law codified the rules of Monegasque private international law which were before the reform essentially set out by the case law.
The Code on Private International Law established by Law No. 1.448 defines the jurisdiction of the courts of Monaco and the conflict of laws rules that Monegasque courts shall apply to various issues such as the status and capacity of natural persons, marriage, divorce, parentage, maintenance obligations, estates, contractual and non-contractual obligations, trusts, etc.
While codifying some of the solutions already adopted by the case law, Law No. 1.448 brought several legislative innovations, particularly in succession and matrimonial matters.
The Code on Private International Law introduced several real advances in succession matters. Henceforth, a single law (that of the domicile of the deceased at the time of his/her death) applies to any national or international succession, unlike the previously applicable system of scission. Moreover, the Code on Private International Law established the professio juris which allows the testator to choose his/her national law to govern his/her estate (movable and immovable), thereby derogating from the default application of the Monegasque law, as the law of last domicile. For certain persons of foreign nationality whose national law does not know or applies only very restrictively forced heirship rights, the new provisions are of particular interest since they allow the testator to benefit from the freedom of disposition in accordance with his/her national law. Furthermore, although the new law contains provisions reaffirming the principle of the reserved portion of the estate, the explicit choice of the national law should limit estate disputes under the law of domicile.
In matrimonial matters, the Code strengthens the principle of freedom of matrimonial agreements concluded before and/or after the marriage, allowing spouses to choose before or during the marriage the applicable law in the event of divorce or legal separation.
There are many other advances in terms of trusts, foreign agreements as to succession, simplification of the procedure for the recognition in Monaco of foreign decisions, etc.
These provisions allow for better matrimonial and estate planning and anticipation, which are of major importance in the international context of Monaco.
In terms of conflicts of jurisdiction, the Code on Private International Law introduced a possibility of international lis pendens, thus enabling the Monegasque courts to stay the proceedings if a foreign jurisdiction has been seized of an identical issue in the first place.
The Code on Private International Law has been applicable since 8 July 2017, but the case law is still scarce, and there is some uncertainty regarding the interpretation of the new private international law rules by the courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
