The Mobile Conflict of Laws in Matrimonial Property Regimes: European Approaches and National Case Law

Abstract

This article examines the phenomenon of the mobile conflict in the law of matrimonial property regimes within the framework of private international law. A mobile conflict arises when spouses relocate between states, potentially altering the connecting factor that determines the applicable law governing their property regime. The relevance of the topic is driven by the growing international mobility of married couples, the deepening European integration of Ukraine, and the absence of specific conflict-of-laws rules on matrimonial property regimes involving a foreign element in national legislation, which gives rise to divergent case law. The aim of the article is to examine the principle of immutability of the matrimonial property regime in cross-border relations through the lens of the European approach and national case law, and to substantiate the need for a clear distinction between the property statute and the matrimonial property statute when adjudicating such disputes. The achievement of this aim was made possible through a comprehensive methodological approach, including the comparative legal method to contrast the legal regulation of the EU, Italy and Ukraine; the formal legal method to interpret conflict-of-laws rules and judicial decisions; and the systemic method to establish the interrelationship between property law, family law and private international law. The article traces the doctrinal evolution from classical models of automatic mutability to the modern principle of immutability, codified in EU Regulation No. 2016/1103 on the law applicable to matrimonial property regimes. Particular attention is devoted to the distinction between the matrimonial property statute and the property statute, the conflation of which is identified as a recurring error in judicial practice. Through analysis of the Supreme Court of Ukraine judgment of 28 January 2026 in case No. 554/4080/23, the article examines the divergent approaches of successive court instances to the legal status of real property acquired in Ukraine by spouses who had contracted marriage in Italy under the separate property regime. It is concluded that the court of first instance correctly applied the conflict-of-laws rule recognising the foreign matrimonial agreement, whereas the appellate court erred by substituting the matrimonial property statute with the property statute. The Supreme Court held that the separation regime chosen at the time of marriage constitutes an element of the matrimonial property statute and continues to govern property acquired during marriage regardless of its location. The article argues for harmonisation of the Ukrainian approach with the immutability principle enshrined in EU law.