Конфликт квалификаций между супружеской собственностью и алиментами в международном частном праве

Abstract

The famous conflict of characterisation in private international law which is its central topic has gained special relevance nowadays in European private international law. The reason is the entry into force of the Hague protocol of 2007 about the maintenance obligations and the Regulation of the European Union of 2016 about the matrimonial property. In both these documents was consciously left open the question about borderline between the liquidation of the regime of matrimonial property and the maintenance obligations in favour to the former spouse. As a result the court has received a certain margin of appreciation when assessing from the point of view of the conflict of laws the property claims of one of the spouses to the other. Taking into consideration that the liquidation of the regime of matrimonial property is submitted in the Pan-European conflict of laws to the immutable statute of matrimonial property which is fixed to the date of the celebration of the marriage and the maintenance obligations are submitted to the law of the actual habitual residence of the needy spouse, the old seemingly purely theoretical issue leads to practical consequences for the married couples with foreign element divorcing nowadays in the European Union.