Is Europe the beginning of something new or the end of something old?

We know what the Eurosceptics think (end, end, end), but the soft power and liberal institutions of the EU can as easily be seen as the forerunner of a new template, which the rest of the world should – and will in due course - adopt.

You only have to see the furious denunciation by right-wingers in this country and the USA of President Obama’s health-care legislation as ‘too European’ to see that it is a topical subject.

The Commission has just published proposals dealing with property rights for people in marriage or a registered partnership.

Yes, you read right: registered partnerships, too.

Along with the Commission’s proposals some interesting data have been published, which will persuade you either that Europe is at the cutting edge of benign liberalism or leading us all towards social disintegration.

In five Member States, marriage is open both for opposite sex and same sex couples (the Netherlands: since 2001; Belgium: since 2003; Spain: since 2005; Sweden: since 2009; Portugal since 2010).

Registered partnerships are a more recent legal institution which are recognised in 14 EU Member States (Austria, Belgium, the Czech Republic, Denmark, Germany, Finland, France, Hungary, Ireland, Luxembourg, Netherlands, Slovenia, Sweden (if entered into before same-sex marriage was recognised) and the United Kingdom).

Although registered partnerships can be used both by same sex and opposite sex couples in Belgium, France, Luxembourg and the Netherlands, in the other countries they are only open for same sex couples.

What a bewildering array of positions, particularly if you consider that in Malta divorce is not yet legally possible.

The proposals were developed in response to the first-ever EU Citizenship Report of October 2010, which described the 25 main obstacles citizens face when making use of their EU rights, and the actions planned by the Commission to eliminate them.

One of the problems related to property rights, and it is this area which has become the first deliverable of the 2010 report.

In Europe, there are around 16 million couples described by the Commission as ‘international’, meaning that they have different nationalities, live outside their home state, or own property in more than one Member State.

At least 650,000 EU citizens face international property questions every year when their marriage or partnership comes to an end. The European Commission is therefore proposing EU-wide rules to bring legal clarity to the property rights of such couples.

The two Regulations would help identify which law applies to a couple's property rights and the responsible court.

They also provide for rules for recognising and enforcing court judgments on a couple's property in all Member States through a single procedure.

The EU has already made it easier for international couples to identify which rules would apply in case they divorce.

Likewise, the Commission has already proposed similar rules for dealing with wills and successions. Now the topic is the related issue of how to deal with common assets after divorce.

Like the recent EU rules to determine which law applies to divorce, the proposed Regulation on matrimonial property regimes lets spouses decide which law should apply to their joint property and assets.

A couple will not be able to choose a law having no relation to their real situation or past history.

If the couple does not agree, the Regulation provides for a set of criteria to determine the applicable law on the basis of the following connecting factors:

  • primarily the law of the spouses' first common habitual residence after their marriage;
  • failing that, the law of the country of the spouses' common nationality at the time of the marriage;
  • failing that, the law of the country with which the spouses jointly have the closest links, taking into account all the circumstances (such as the place where the marriage was celebrated).

For registered partnerships, the law of the state where the partnership was registered should apply to property issues, in order to provide predictability.

So, more harmonisation to please or infuriate you … and further steps towards an EU model which the rest of the world - that itself has to take increasing account of cross-border issues - may one day adopt.