by Kurt Siehr
The notion personal law is a somewhat ambiguous term encountered in many continental law jurisdictions. In day-to-day life it may have the meaning of personal status (état civil, Personenstand, stato civile) as the status of a person as being married, divorced, widowed or living in a sort of partnership (civil status registration). In most cases, however, the notion assumes a different meaning and is distinctly related to questions of private international law (PIL).
2. Personal law in PIL
In PIL the term ‘personal law’ (statut personnel, Personalstatut, statuto personale, personeel statuut, lei pessoal, ley personal) is that law which regulates the personal relations and affairs of a natural or legal person. Dissimilar, however, are the connecting factors used to determine that law and also dissimilar is the extent of personal law. The modern notion of personal law is quite different from the statutum personale of medieval times based on the doctrine of statuta. At that time personal law was still substantive law which defined its field of application by referring to the personal relations of one or more persons concerned.
a) With natural persons the personal law is either the law of nationality (lex patriae) of a person or the law of domicile/habitual residence of a person. Reference to the law of nationality was advocated by the Italian Pasquale Stanislao Mancini (1817–88). He favoured the idea of PIL being based on the nazionalità and his idea was accepted by the Hague Conference until World War II and, sometimes, is still valid in certain national PIL statutes (eg § 9 Austrian PIL Statute; Arts 7 ff EGBGB; Art 5 Greek CC; § 11 Hungarian PIL Regulation; Art 20 Italian PIL Statute; Arts 8 ff Polish PIL Statute; Art 15 Portuguese Código civil; Art 9 Spanish Código civil; Arts 9 ff Turkish PIL Statute).These codifications of PIL apparently try to continue with their tradition of applying the national law of the person concerned because the national law may be fixed easily and because of the stability of national law which remains unaffected by an individual’s moving from one country to another. Yet within the European Union, these efforts may be in vain. Namely, the principle of nationality will soon be very much reduced on account of five different factors. (1) More and more persons have several nationalities and therefore it may become doubtful which nationality prevails. (2) There are many mixed marriages (mariages mixtes) and, because of equality between husband and wife, a common denominator has to be found if they do not share the same nationality. (3) In child law the welfare of the child is of utmost importance and the law of the closest connection to guarantee this is often the law of the child’s habitual residence and not the law of nationality. (4) In interregional and supranational business law, the law of nationality of a Member State cannot be applied because either there is no nationality of a region or the application of the law of nationality of a Member State may be a violation of the principle of non-discrimination because of nationality (see Art 2 TEU; Art 10 TFEU (both added by the Treaty of Lisbon)). (5) If unification of law also extends to the common law countries, it is better to abandon the law of nationality because these countries do not apply the law of nationality. Today the Hague Conference mainly refers to the law of habitual residence. Also, the European Union favours the habitual residence of a person concerned in the drafts for family law and succession law, and national codifications of PIL also refer to the law of habitual residence or domicile (eg Swiss PIL Statute).
b) With persons having more than one nationality the personal law, based on the principle of nationality, is hard to define. Which nationality is decisive or which law may serve as a substitute? With such persons, it is a common approach to settle upon the country with which the person has the closest contact, in particular the country in which the person is habitually resident (eg § 3 Austrian PIL Statute; Art 3 §2 Belgian PIL Statute; Art 5 §1 sentence 1 EGBGB; Art 23 § 2 Swiss PIL Statute). There are, however, limits to this rule of closest contact. Where persons are also local citizens this nationality prevails and the law of inland nationality applies as personal law (eg § 9 subsection 1 sentence 2 Austrian PIL Statute; Art 3 §2 No 1 Belgian PIL Statute; Art 5 § 1 sentence 2 EGBGB; Art 19 §2 sentence 2 Italian PIL Statute). This rule, however, may be discriminatory under European law and therefore should not be applied in European cases.
c) There must be an additional reference (Unteranknüpfung) where the primary reference (nationality, domicile or habitual residence) does not yet refer to a specific law. This may be the case with a territorially or personally split jurisdiction. If, for example, the national law of a person is applicable by a reference to that law and if that national law is split into territorial units with their own private law or if the national law has different private law regimes for different groups of persons (based on religion or ethnic origin), the applicable law has to be determined by an additional reference. The same is necessary if the law of domicile or habitual residence applies and these laws have different private laws for different groups of persons (see eg Israel, different maintenance provisions for children at their habitual residence). Primarily it is the task of the law designated by the main reference to decide the law of which territory or the law of which group of persons should apply according to the interregional or interpersonal law of the lex fori. If such an additional reference is missing, the applicable law should be determined according to the principle of the closest connection. That is, it has to be decided to which region or to which group of persons of the country whose law is applicable under the main reference the person concerned has the closest connection.
d) The personal law of legal persons has to be determined separately. There are two possibilities. Either the law at the statutory seat is applicable as a personal law (theory of incorporation, théorie de la constitution ou du siège statutaire; Gründungstheorie, teoria della costituzione) or the law at the factual seat of the principal place of administration (real seat theory, théorie du siège, Sitztheorie, principio della sede). European jurisdictions have chosen different solutions in their national laws. In the United Kingdom and in Switzerland (Art 154 § 1 Swiss PIL Statute) the law at the place of incorporation applies. In Austria (§10 Austrian PIL Statute), in Germany and in Portugal (Art 33 § 1 Portuguese Código civil) the real seat theory governs. Italy has accepted a mixed system: for foreign corporations the law at the place of incorporation governs, and for corporations with their seat of administration in Italy the real seat theory applies (Art 25 § 1 Italian PIL Statute). The Hague Convention of 1 June 1956 on Recognition of Legal Personality of Foreign Corporations, Associations and Foundations chose as the personal law of these entities the law at their place of incorporation, but the Convention never entered into force. The real seat theory violates the law of free movement of persons under the EU Treaty and therefore is no longer applicable within the EU (international stock corporations).
e) The field of application of personal law is vast and extends to all questions of creation, effect and dissolution of family relations, questions of succession and questions of contracts unless the law at the place of contracting (especially for the formation of contracts), the lex situs (especially for succession with respect to immovables) or the lex fori (especially with respect to marriage or divorce) is applicable. For legal persons Art 25 § 2 Italian PIL Statute enumerates quite well all those questions which are governed by the personal law of these entities.
3. Personal law in international civil procedure
In European civil procedure, international jurisdiction lies with the courts at the domicile of the defendant (Art 2 Brussels I Regulation 44/2001; Art 3(a) and Art 8 Brussels II Regulation 2201/2003 and Art 3 Maintenance Regulation 4/2009). The national law of a party is not especially important in civil procedure. Either it has no impact whatsoever (Art 3(c) and (d) European Maintenance Regulation) or it serves in addition to other elements as the basis for judicial jurisdiction (Art 3(a) last indent Brussels II Regulation). According to Art 15(3)(c) Brussels II Regulation, jurisdiction may be transferred to the national state of a child.
In the domestic law of civil procedure, domicile and habitual residence dominate as connecting factors for the jurisdiction of courts. But there are also primary and secondary rules for a subsidiary jurisdiction in respect to local citizens. Such a jurisdiction for local citizens may be found in §§ 98(1) No 1, 100 No 1 and 101 No 1 German FamFG, § 55 lit a Hungarian PIL Ordinance, Art 9 Italian PIL Statute, and in Art 43(1) Swiss PIL Statute. A subsidiary head of jurisdiction may be found in Arts 47, 60 and 67 Swiss PIL Statute.
4. Personal law in internal law
In purely internal private law the term ‘personal status’ prevails. It describes the personal status of an individual and is equivalent with the terms état civil, Personenstand, statuto civile or Zivilstand. The term describes the person as married, divorced, widowed or as partner of a registered partnership. The expression ‘legitimate’ or ‘illegitimate’ is no longer a question of personal status because in modern legal systems such a differentiation has ceased to exist. Instead of this, the only question is whether the mother of a child is married or not. In some Francophone countries where the law of aliens is also part of PIL, the status of aliens is also called état civil or statut personnel.
On the international level the International Commission on Civil Status (CIEC) deals with matters of civil registers. This organization tries to harmonize and unify the substantive law of registration and—to a lesser extent—addresses the unification of private international law.
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