Sources of Family Law
A codified system of law is possessed by Denmark. The Acts of Parliament supplemented by court decisions are the primary sources of family law; in which judges have interpreted and applied the legislation.
The most important Acts are: No 256 of 4 June 1969, with subsequent amendments regarding the formation and dissolution of marriage (hereafter called Marriage Act 1) and No 56 of 18 March 1925, with subsequent amendments regarding the legal effects of marriage (hereafter called Marriage Act 2).
Family law also comprises the law of parents and children. The principal statutes are: No 460 of 7 June 2001 on paternity (the Paternity Act), No 200 of 18 May 1960 with subsequent amendments on child maintenance (the Child Maintenance Act) and the Act of 2 June 1995, with subsequent amendments on custody and visitation (the Custody Act). The law governing inheritance is contained in No 215 on 31 may 1963 (hereafter called the Succession Act). The law relating to practice and procedure is found in secondary legislation (e.g., the Administration of Justice Act No 90 of 1916 with subsequent amendments The Administration of estates Act No 155 of 30 November 1874, with subsequent amendments and the act on the Administration of the Estate of the Deceased, No 383 of 22 May 1992 (with subsequent amendments).
Family cases are heard in ordinary courts as there are no special family courts in Denmark. The county governor settles most of the cases by an administrative procedure; this is a faster and cheaper way than judicial proceedings. The county governor’s decision can be appealed to the Department of Private Law in the Ministry of Justice. Decisions from the city court can be appealed to the High Court and, if the case started in the High court or gets a special permission from ‘Procesberillings nevnet’, to the Supreme Court.
Adjudication of disputes
Family law disputes related to maintenance and property are settled out of the court by private agreement between the parties by negotiation between lawyers. Conciliatory approach is recommended by the practitioners rather than litigious approach for the resolution of disputes. The parties are referred to out-of-court conciliation services in some cases, with respect to arrangements for children. Parties are encouraged to reach an agreement but they are not completely free to enter into an agreement in respect of divorce and custody of children. Investigation and consideration of extraneous evidence is done by the judge and he may reach to a decision contrary to parties’ agreement. Family cases are taken place in camera.
The profession is unified in Denmark; there is no split between solicitors and barristers. There is an association of family lawyers, who are specialised in family law.
Some clients might get qualified for legal aid (Sections 330 and 330 (a) of the Administration of Justice Act). The reasonable ground for bringing the action and an inability to pay the costs based on a mean test are the conditions required for the provision of legal aid. Court and lawyer’s fee is covered under the legal aid. Legal aid in Denmark is available to resident and non-resident nationals and resident and non-resident foreigners taking a legal action. Court chooses the lawyer for the assistance of the legal aided person. There is also an availability of emergency legal aid. In a typical case, only half of the lawyer’s fees is covered by legal aid. If an applicant received legal aid in case of distribution of estate, there has to be a partial repayment of legal aid provided to him or her and considerable value in the division of property. There is no obligation to recover legal costs in matrimonial cases.
The County Governor and Ministry of Justice administer the schemes of legal aid. In addition a party can, according to his or her means, obtain a state subsidy to receive legal advice short of appearing in court. The Danish Bar and Law Society runs a free initial advising and assistance scheme known as ‘Advokatvagten’ ‘Civilretsdirektoratet’ (Department of Private Law) provides the information about the legal aid schemes and provisions.
To pursue actions under the Hague Convention on the Civil Aspects of International Child Abduction 1980, legal aid is available. Denmark is also a party to the 1977 European Agreement on the Transmission of Applications for Legal Aid. This allows a person residing in a state party outside Denmark, to make an application for legal aid for civil, commercial or administrative (but not criminal) proceedings in Denmark. An application in English or French is also acceptable.
The law of domicile is not highly developed in Denmark. If a party is residing in Denmark permanently and has no intention of staying temporarily then the party is ‘domiciled’ in Denmark. Though, the concept of Danish ‘domicile’ is close to that of ‘habitual residence’, a person’s intention is also referred. A Danish domiciled person residing in another country because of education or work may well be regarded as habitually resident in that country, but also be treated as domiciled there unless he intends to reside there permanently. The Danish citizen might regain his or her domicile after a short period of residence after returning Denmark. A person may be without a domicile but cannot have more than one domicile.
Act No 256 of 4 June 1969, with subsequent amendments, makes provision for the formation (or dissolution) of marriage (‘marriage Act 1’).
There need to have a capacity to marry and comply with certain formalities by the parties to a marriage. Breaching these requirements may lead to the nullity of marriage. The municipal authority must establish that each party has the capacity to marry, before the ceremony of marriage.
Capacity to marry
The parties must:
(i) not be within the prohibited degrees of relationship. Marriage between lineal ascendants and descendants and between brothers and sisters is prohibited, but is permitted between uncle and niece, or aunt and nephew, and between cousins. Where a party to a marriage has previously been married to a lineal ascendant or descendant of the other party, permission to marry must be obtained from the Minister of justice. An adopter and adoptee cannot marry while the adoption is in force.
(ii) be over the age of 18 and not declared incapable. Both parties must be at least 18 years old at the time of marriage, but a person under this age can marry with parental consent and with the special permission of the county governor. The latter can also dispense with parental consent where it is unreasonably withheld. A person declared incapable can only marry with his or her guardian’s consent.
(iii) not be already married.
(iv) be respectively male or female. Although it is not expressly stated in legislation, parties to marriage must be of the opposite sex. However, parties of the same sex can enter into a registered partnership.
Conditions of a valid marriage
The marriage ceremony is performed by a proper authority before which the parties must jointly declare their wish to marry and thereafter be declared married. The marriage will be rendered void if these conditions are not satisfied. Where special reasons exist, the minister of justice is authorised to approve an invalid marriage and the cases of invalid marriage are rare.
Nullity of marriage
A marriage is considered null and void if:
(i) The parties are not male and female; or
(ii) The marriage is between a person and a young child (under 15 years).
The court can annul a marriage where:
(i) a marriage is bigamous;
(ii) the parties are within the prohibited degrees of relationship;
(iii) the marriage has been contracted as a result of duress or fraud; and
(iv) a party’s mental state prevented him or her acting rationally.
The state brings the application for an annulment on the ground of bigamy or prohibited degree of relationship, or by one of the parties or, in the case of a bigamous marriage, the spouse of the previous marriage. One of the parties can bring the application on the grounds of duress, fraud or the mental state of one of the parties. Such marriages are voidable, i.e., they are valid until annulled.
A marriage can be solemnised by either a civil or religious ceremony:
(i) A civil marriage is performed by the Chairman of the Municipal Board (in Copenhagen, a Mayor), who is obliged to perform a wedding for any couple wishing to marry, even though the marriage conditions have been verified elsewhere.
(ii) A religious marriage is valid if it is performed within:
(a) the Danish established Church to which at least one of the parties belongs;
(b) a recognised religious community, provided that one of the parties belongs to the religious community in question;
(c) an unrecognised religious community of which one party to the marriage is a member, provided there are ministers authorised to perform marriages; or
(d) A religious community in another country placed on an equal footing with the Danish Established Church.
Recognition of foreign marriages
If the foreign marriage is celebrated in accordance with the formal requirements of the law of the country then that marriage is recognised as formally valid (‘lex loci celebrationis’), except the marriage is contrary to the Danish public policy. A marriage by proxy is not recognised in Denmark.
Legal consequences of marriage
Act No 56 of 18 March 1925, with subsequent amendments (‘marriage Act 2’) laid down the legal consequences of marriage.
Under the Danish Nationality Act:
(a) A child is Danish citizen if, at the time of birth, his or her father or mother is a Danish citizen.
(b) If the parents are unmarried and only the father is a Danish citizen the child will only receive Danish citizenship if he or she is born in Denmark.
(c) An unmarried minor child of a Danish father and foreign mother, who has not acquired Danish citizenship at birth, acquires Danish citizenship on his or her parents’ marriage.
(d) A foreign child under the age of 12 years old adopted by a Danish adoption order acquires Danish citizenship on adoption, if the child is adopted by a couple, where one of the spouses is a Danish citizen or by an unmarried Danish citizen.
(e) An alien who has lived in Denmark for most of his or her childhood and youth (ten years in total, including five years within the last six years) can acquire Danish citizenship by a written declaration before the county governor made by the young person between 18 and 23 years, if he or she has no criminal record.
(f) When a parent is naturalised, the unmarried children under the age of 18 are also naturalised and acquire Danish citizenship, provided that the child is resident in Denmark and in the event of a parent being divorced or separated, the parent seeking naturalisation has custody.
(g) A party to a marriage does not automatically acquire Danish citizenship, although in the case of marriage the required period of residence is not as strict as it is in other cases for acquiring citizenship.
(h) Special provisions exist in relation to persons who acquired Danish citizenship at birth, but lost it at later time.
Spouses are considered as two independent persons but with equal rights. Spouses have a mutual duty to support each other and jointly safeguard the interests of the family.
Spouses are generally subject to the same principles of property law as private individuals, but certain special provisions apply:
(a) there is an obligation of mutual support during marriage;
(b) a deferred community of property regime usually applies on divorce;
(c) special provisions apply to the distribution of property on the death of a spouse;
(d) special provisions apply to the occupation of the matrimonial home;
(e) there are special provisions relating to tax, pensions and social security arrangements for spouses
It is the mutual duty of spouses to support and contribute to maintain a standard of living for the family, according to his or her means. The fulfillment of obligations is done either financially or by household works.
Until the child reaches majority, both parents have authority over him or her. Both parents are obliged to support their children financially. Child is in joint custody of married parents.
FINANCIAL PROVISION DURING MARRIAGE
The disputes concerning property and finance occur on termination of marriage. A spouse might wish to apply for financial provision either for him or herself and/or any children.
Financial provision between spouses
When a spouse has failed to fulfil his or her support obligations or by either spouse when the spouses are living apart due to disagreement, an application for financial provision is made to the county governor by the applicant spouse and/or any child. Applications are common when spouses are separated but rare when cohabiting.
Right to claim a division of the community of property is given to the spouse who is deserted. For example, a deserted spouse might wish to apply if there is a risk of the other spouse misusing any property held in community or if the other spouse is facing bankruptcy proceedings. The community property may also be changed into separate property by making a settlement if the spouses want so.
Under the child legislation, an application can also be made to the county governor for the financial provision for a child.
In the form of a general public social benefit, families have a right to cash payments in respect of children.
Citizen residents aged 65 or over are entitled to get national pension, irrespective of employment, income, sex and civil status, in Denmark. For wage earners a labour market supplementary pension is widespread.
A state social pension is entitled to the persons who have lost their ability to work.
Although, the spouses are taxed personally, but there are provisions which take the close personal and economic relations between the spouses into consideration. Most of these tax provisions are beneficial for the spouses, but some provisions like joint liability for tax debts are disadvantageous too.
PROPERTY DURING MARRIAGE
The matrimonial property regime is one of deferred community property. When spouses get married, this regime is applied automatically, unless an alternative property regime is chosen by them. It extends not only to acquisition during marriage, including gifts and inheritance, but also the property that each spouse brings into marriage.
Community of property is deferred under the Danish system: it cannot come into effect until the marriage is terminated, either by legal separation, divorce or death. During marriage, the system is similar to a separate property system which each spouse entitles, on his or her own behalf, to dispose of property which he or she has brought into marriage, or has acquired in any way during the marriage (including gifts and inheritance).
The other spouse can ask that the community be dissolved and the property to be divided and/or claim compensation when there is a misuse, or risk of loss by misuse.
Separate property ownership
The spouses can be subjected to total or partial separate property ownership after opting out the system of community. Registration of alternative property arrangements can be made by the public registry in a written agreement. It is the considerable autonomy of the spouses as to how they own a property. Spouses can register a new agreement in which they are agreeing that community of property, in whole or in part, shall apply, when they have agreed to own property separately.
Where a donor or testator has specifically stated that a gift shall be separately owned, then the separate property ownership will arise and such property cannot be changed into community property by the spouses, without donor’s consent.
No property division takes place on marriage breakdown or death in case of separately owned property. The undivided possession of the entire community property can be retained by the surviving spouse; this advantageous rule is not applicable to separate property even where there are children. Rules relating to damages for misuse of the property and restricted rights to dispose of the matrimonial home do not apply either.
Contracts and tortuous liability
Spouses enter into a binding contract with each other during marriage and are liable to each other in tort.
Both spouses are liable for the purchases made for the household or necessities for children but the creditor can only take proceedings against the property of the debtor spouse. For the personal purchases made by the wife, the husband also becomes the debtor but this right is not similar in case of husband’s personal purchases.
Gifts between spouses
Gifts between the spouses might require formalities. A gift to be valid between spouses and in respect of creditors or heirs of the donor, there is a requirement of registration, except for usual gifts. If the donor is not able to pay, the creditors may claim against the donor spouse and demand that the donee spouse pays an amount corresponding to the value of gift, if the gift is validly registered.
Occupation of the matrimonial home
Spouses have restricted rights to dispose of the matrimonial home (and any business with which the other or both spouses are connected). Mutual consent of both the spouses is necessary for the selling, giving away, leasing or mortgaging the matrimonial home. This same rule is applicable for the furniture and equipments needed for the work in the matrimonial home.
When one spouse is violent or is molesting the other spouse, an order can be obtained from the police. In case the spouses are still living together, obtaining such order is not possible.
Author: Navin Kumar Jaggi