Sources of Family Law
There are three branches of Finnish family law: marriage law, which regulates the relations between spouses; child law, which prescribes the relations between children and their parents, both biological and adoptive; and international family law.
Marriage law is codified in the Marriage Act of 13 June 1929 No 234, as amended and modernised by the Marriage Act Amendment act of 16 April 1987 No 411. The most important legislative provisions concerning child law are contained in the act on Custody and Visiting Rights of the child of 8 April 1983 No 361, the Act on Paternity of 5 September 1975 No 700, and the Act on Adoption of 8 February 1985 No 153. The main provisions concerning international family law can be found in the Act on International Family Relations of 5 December 1929 No 379.
Many international conventions concerning family law have been adopted by Finland. International family law is developing fast, and expected amendments to the Act on International Family Relations will alter the law relating to marital personal and property rights, the creation of a valid marriage and the approval of foreign marriages.
Family cases are mainly dealt with judicially, but administrative organs are involved in some procedures, e.g., in giving permission to marry despite the impediments to marry and in affiliation and custody proceedings. As per the normal rules of procedure, family cases are heard in the ordinary civil courts. In family cases the parties are allowed to agree on the solution, i.e., they are dispositive. Affiliation proceedings constitute the only full exception to this principle of dispositivity in the context of family law, although, in custody and visiting right cases, which are mainly dispositive, the court is able to depart from the agreement of the parties.
Any person who has graduated from a faculty of law is a lawyer in Finland. There is no division between solicitors and barristers, the legal profession is unified. Finnish Bar Association examinations has to be passed by a lawyer to become an advocate. Only an advocate or some other honest, suitable and capable adult may act as a trial counsel. Capability of a person to act as a counsel is decided by the court.
For family proceedings, legal aid is provided by the legal aid system if the parties fall within the financial limits. The basic rules are found in the Legal Aid Act of 6 February 1998 No 104. Legal aid is available for a person domiciled in Finland, as well as for a person who is a citizen of one of the European Union or European Economic Area countries, who is either working or searching for work in Finland. For other persons legal aid is available if proceedings are instituted in Finland.
A person is domiciled in the municipality he or she lives, as stated under section 2 of the act on Domicile Municipality of 11 March 1994 No 201. The domicile of a new born is the domicile of the mother. If a person has either more than one residence or none at all his or her domicile is the municipality he or she considers as his or her domicile. The domicile will be the municipality to a person’s closest connections in terms of his residence, family and relations if it is not possible to establish where a person considers him or herself domiciled.
There will be no domicile in Finland, after moving abroad for longer than one year. Having closer connections to Finland than to his or her domiciled foreign country, the domicile may still be in Finland. If a foreigner moved to Finland permanently, the domicile will be determined by the rules set above.
THE CREATION OF VALID MARRIAGE
At present, the engagement is based on traditions and customs with no legal effect, a man and a woman who have agreed to marry each other shall be engaged, as provided under the Marriage Act. Section 15 of the Marriage Act states the requirements for a valid marriage ceremony.
For the contract of a valid marriage, the parties have to comply with the set rules stated under the Marriage Act. The examination of the impediments to marriage is done by the city administrative court (‘maistraatti’) or the parish of the evangelical Lutheran or Orthodox Church of which the engaged couple, or one of them, are parishioners. The marriage is concluded by a marriage ceremony.
Impediments to marry
The Marriage act sets out the following impediments to marriage:
(i) A person under 18 years of age may not conclude a marriage, although the ministry of Justice may grant an under-aged person a dispensation to marry in special circumstances. Before the matter is decided, the applicant’s custodian will usually be given an opportunity to be heard.
(ii) If a person’s prior marriage is still in force she or he may not remarry. There can be no exception to this impediment.
(iii) No one may conclude a marriage with his or her direct ascendant or descendant, nor with his or her siblings of full or half blood, and there can be no exception to these impediments. Marriage between two persons, one of whom is a descendant of the other’s brother or sister, is also forbidden unless the Ministry of Justice grants a dispensation to marry for special reasons.
(iv) An adopted child and his or her adoptive parent may not intermarry. However, the Ministry of Justice is able to give them a dispensation to marry if there are especially weighty reasons for doing so. If such a marriage is concluded the legal effects of the adoption cease, with the consequence that is impossible or two persons to be simultaneously adoptive parent and child, and husband and wife.
The marriage will be valid and all the legal effects of the marriage will be followed, if it has been concluded even after one or more impediments. Proceedings seeking parties’ immediate divorce will be made by the public prosecutor if either spouse’s prior marriage is still in force, or they are related to each other as direct ascendants, or descendants, or siblings.
The examination of the impediments to marriage must be requested by the engaged couple together, by the city administrative court or the appropriate parish. An assurance must be made by the couple if there are no impediments to their marriage.
The marriage is concluded by a religious or civil marriage ceremony after getting a certificate of no impediments existent to the marriage. The marriage is performed in the presence of relatives and witnesses. The performance of religious marriage takes place in either the official state church or in another religious community which has been granted by the Ministry of Education. The concerned religious community set the rules of the couple’s right to have a religious ceremony.
After giving an affirmative answer to the officiator to the question whether he or she wants to conclude the marriage with the other by each party, they are pronounced as husband and wife.
If these formalities are not complied, the marriage will be void as stated under section 19 of the Marriage Act. The marriage shall be nullified, if the ceremony is performed by the unauthorised person. Marriage can be validated, only by the President of the Republic, for especially weighty reasons.
Recognition of foreign marriages
According to the Hague Convention of 1976 on the Celebration and Recognition of Marriages, the Marriage Act states that a marriage, validly contracted according to the law of the country in which the marriage is solemnised, will be regarded as a valid marriage in Finland. The recognition of the marriage can be denied if it offends public policy.
THE LEGAL CONSEQUENCES OF MARRIAGE
Marital personal rights
Section 2 of the Marriage Act states that this act is based on the idea of equality of the spouses. It states that the spouses should display mutual trust, and work together for the good of the family, but beyond that it does not regulate the relations between the spouses. It is the right of each spouse to decide whether he or she wants to work or take part in social activities. There is no restriction in marriage on either spouse to conclude contracts or his or her right to sue and be sued, unless otherwise stipulated. Spouses are considered independent on their relations with a third person. Marital obligations are not arisen by the Marriage Act, and inter-spousal rape is a criminal offence.
Mutual surnames are allowed to be taken by the spouses (under section 7 of the Name Act of 9 August 1985 No 694). It can be the name of either spouse while last unmarried, or a combination of their names. The surname before marriage can also be maintained by the spouses.
A child born to a married couple with a mutual surname takes the surname of the parents (under section 2 of the Name Act of 9 August 1985 No 694). One of the surnames is allowed to be chosen by the parents, when they do not have a mutual surname (section 2, Ibid). In case of joint custody of a minor child, the surname of the older sibling is taken (section 2, Ibid).
MAINTENANCE DURING MARRIAGE
It is the duty of the spouses to maintain each other according to their abilities and have duty to participate in the common household. To maintain the household, spouses may fulfill the provision of money or work at home; anyhow they have to do their duties. The court may order one spouse to pay the maintenance to other if the other one is neglecting his or her maintenance obligations or they are living separately (section 47 of the Marriage Act). The spouses may agree on the maintenance payable as this is a ‘dispositive’ matter. To consider whether the agreement is to be deemed reasonable, the agreement must be concluded in writing and presented for confirmation to the Municipal Board of Social Welfare. The confirmation of agreement by the Municipal Board of Social welfare is enforced in the same way as a final court order.
If the child’s mother is Finnish or if his or her father is Finnish and married to the mother then the child will acquire Finnish citizenship. A spouse may apply for Finnish citizenship n such cases.
A spouse can obtain an order to prohibit his or her partner from approaching (‘lahestymiskielto’) him or herself under Finnish law. Spouses who share the same household might not obtain such restraining order. The legislation of enabling a spouse to obtain an order forcing a violent spouse to leave the home is under consideration.
Marital property rights
Under Finnish law there is no regime of community of property on marriage. A spouse retains his or her own property on marriage; principle of separate property is also applied on the property acquired during the marriage. The decision of ownership of spouses’ property is made according to the principles of the general law of property and obligations. The spouses shall be deemed to have acquired the property jointly, if the circumstances are not conclusive and it cannot be proved to which spouse a particular movable object belongs.
The debt incurred before or during the marriage is the individual liability of the spouse, if the debt incurred for the maintenance of the family, it will have joint liability of the spouses. Spouses may give property to each other, as they concluded mutual contracts.
RESTRICTIONS ON DEALING WITH PROPERTY
The property (his or her own) is administered by the each spouse, according to the principle of separation of property (under section 36 of the Marriage Act). Still, there are some restrictions. Generally, the property which is used as the common home of the spouses, a spouse may not convey the real property without other spouse’s written consent. The movable property related to the common home or the spouses or to either spouse’s occupation, is also restricted. The property in question cannot be conveyed or transferred by either spouse without other spouse’s consent.
THE ‘MARITAL RIGHT’ (AVIO-OIKEUS)
There is a provision under the Marriage Act that each spouse has a ‘marital right’ to the property of the other, to avoid the potential injustice caused by the application of the principle of separation of property at the end of a marriage. The property is retained by the surviving spouse or the heirs of the deceased spouse, or, on divorce, each of the spouses, shall retain half of the spouses’ net property. However, a spouse will not have a ‘marital right’ to property excluded from it by a marriage settlement agreement, gift deed or a will, nor to property acquired instead of such property. The filing of the marriage settlement is done with the court at either spouse’s place of residence or, if neither resides in Finland then the Town Court of Helsinki. The marriage settlement shall be registered by the court.
LAW APPLICABLE TO MATRIMONIAL PROPERTY MATTERS
The decision of matrimonial property is made according to the law of nation of which the husband has citizenship at the time of the dissolution of the marriage. However, the spouses may agree, through a valid marriage settlement concluded before the marriage, that Finnish law is to apply.
Author: Navin Kumar Jaggi