Sources of family law
Family law in Norway is codified in the Marriage Act of 4 July 1991, No 47 (‘MA 1991’). Relevant provisions are also to be found in the Administration of Estates Act of 21 February 1930, and in the Inheritance act of 3 March 1972, No 5 (‘IA 1972’). The law of parents and children is based upon the Act on Children and Parents of 8 April 1981, No 7. These Acts have been subject to subsequent changes since they were initially passed.
As per the legal tradition of Norway, court practice has an important role in the interpretation of Acts of ‘the Storting’ (the Parliament of Norway). To obtain a full understanding of law, study of the practice of the courts is required. The practice from the 1991 Act is relevant in future, even though, many of the provisions are based on the older legislation.
The Ministry of Children and Family Affairs provides the English translation of these Acts.
Family cases may be dealt either administratively or judicially. The representative of the state in the 19 counties in Norway is ‘fylkesmann’ (County Governor). Decrees of separation and divorce can be granted by him. If both the spouses agree to let the County Governor decide the matter, the County Governor can deal with the issues of maintenance.
The Probate Court (‘skifteretten’) might be asked by the spouses to take over the estate and administer the division when community (or joint) property is divided after a separation or divorce or the spouses may divide the estate privately with or without the lawyer’s assistance. In practice, the assistance of the Probate Court is today only sought in fewer than 3% of cases. When the estate is not administered by the Probate Court, disputes between the spouses are dealt by the ordinary court with Supreme Court as the highest court. The case might be appealed to the High Court and starts in the city court. Two to four family law cases are heard annually by the Supreme Court.
The adjudication of disputes
According to the normal rules of procedure, disputes are dealt in ordinary civil courts when the estate is divided, as a result of agreement between the spouses. System is adversarial not inquisitorial, although, the procedure is simplified in the Probate Court.
Spouses reach to an agreement with the help of conciliation. The service of out-of-court conciliation has been expanded over a few years. Conciliation service is staffed with specialists, trained in conciliation procedure and technique.
There is no division between solicitors and barristers as the profession is unified in Norway. Majority of ancillary issue petitions are assisted by the lawyers, these are dealt separately from the issue of divorce or separation.
Spouses can obtain legal aid, under the legal aid system, provided they fall within the financial limits. The basic rules are found in the Legal Aid Act of 13 June 1980, No 35. According to a Decree of the Ministry of Justice No 865 1991, there is an annual income limit of NOK 170,000 (approximately EUR 22,280) and a net asset limit of NOK 210,000 (approximately EUR 27,520) for entitlement to legal aid. The eligibility is considered by the local court and County Governor after the submission of application. If the proceedings are instituted in Norway, legal aid will be available to Norwegian nationals, non-resident and non-nationals.
The claimants may appeal to the Department of Justice if the legal aid is refused by the County Governor.
Applications in Norwegian language are preferable, though, the applications might be in any language.
A person is regarded as ‘domiciled’ if he or she has spent a certain period of time in Norway. ‘Domicile’ and ‘Habitual residence’ can be used interchangeably. A practical approach is taken: If there is no proof to contrary, a person is regarded as domiciled or habitually resident in Norway.
A Norwegian citizen will not be treated as domiciled or habitually resident of Norway if he or she lives outside Norway. That person will, once more, be regarded as domiciled or habitually resident in Norway if that citizen returns with an intention to remain there. There cannot be more than one domicile per person.
THE CREATION OF A VALID MARRIAGE
The parties must comply with the provisions of the Marriage Act 1991, in order to contract a valid marriage. The marriage will be declared void if it fails to satisfy certain rules relating to capacity or formalities.
Parties to the marriage must be a male and female as a marriage is regarded as the union of one man and one woman. This is followed under legal tradition but not expressly stated in the Act.
Capacity to marry
In order to contract a valid marriage the parties must:
(i) be over the age of 18. If a person under 18 wishes to marry, he or she must have permission from both his or her parents and the County Governor. Such permission will only be granted if specific circumstances exist. In practice, permission is only given if the woman is pregnant and her intended spouse is the father of the child.
(ii) not be within the prohibited degrees of relationship. Marriages between lineal ascendants and descendants, and between brother and sister, are forbidden.
(iii) not be already married. If there is doubt as to whether a former spouse is dead, a decree of presumption of death must be obtained, according to the provisions of the Missing Persons Act 1961.
(iv) a person suffering from a contagious disease which is transmissible by sexual contact, cannot enter into a marriage unless the parties have received counseling from a medical practitioner with regard to the risks connected to the disease;
(v) a foreign national who is not permanently resident in Norway can only be married in Norway when he or she fulfils the conditions of marriage required by his or her relevant national law, as well as by Norwegian law;
(vi) to be married in Norway, a foreign national must legally be in the country;
(vii) although, it is not expressly stated in the Marriage Act 1991, parties to a marriage must be of the opposite sex. However, parties of the same sex can enter into a registered partnership.
Formalities are complied with a marriage, whether a marriage is solemnized by a civil ceremony or religious rites.
It is the choice of the parties whether they want to solemnise their marriage in a civil ceremony or a religious ceremony. The official state church or a religious community which has King’s approval, solemnize the marriage religiously and gives recognition to it.
There must be a clear consent of the parties to the marriage and the parties must be declared to be lawfully married by the celebrant. The marriage will be considered void, if these formalities are not complied. The King may, however, ex tunc approve of the marriage where there are special reasons for doing so. As per the added provision of 1994, a marriage is void if he or she has been forced into it.
Recognition of foreign marriages
A marriage will be regarded as a valid marriage if it has been validly contracted according to the law of country in which it was solemnised (lex loci celebrationis), provided that it has not offended public policy. Polygamy is the most obvious conflict of marriage in Norway and an informal or a marriage by proxy.
The legal consequences of marriages
The civil status of individuals is affected by a marriage in various ways.
The Norwegian Nationality Act of 8 December 1950, No 3 gives a child Norwegian citizenship if the mother is Norwegian or if the father is Norwegian and married to the mother. Marrying a Norwegian citizen does not confer citizenship. In such a case, spouse may apply for Norwegian citizenship when they are living together. It is not required for the spouses to be a resident of Norway in order to get the citizenship. Thus, while living in England, a British woman can apply for citizenship in Norway whose husband is a Norwegian.
Citizenship will not be acquired by a child born in Norway whose parents are non-Norwegians, unless he or she has a seven years’ residence in Norway. Citizenship will not be granted until the child is at least 18 years old.
A child will automatically receive Norwegian citizenship, if one or both of married couple has Norwegian citizenship.
Property rights on marriage
Spouses are regarded as independent persons in law with equal rights. So, no change in the relationship between the owner and his or her property occurs. It is applied whether the property was acquired before the marriage or during the marriage. Each spouse has a right to dispose of his or her property as stated under The Marriage Act 1991. This rule is applied to both assets which form part of the community property (‘felleseie’) and separate property (‘saereie). Without the consent of a spouse, other spouse cannot contract a debt. Thus, there is a little difference between community property and separate property during the marriage. Assets which have been community property will as a general rule be divided equally, and the separate property kept by the owner where a marriage breaks down or ends in death.
Generally the joint residence of the parties is their matrimonial home. Marriage does not convert an individually owned home, which is owned by one spouse to be a jointly owned property of the spouses, after marriage. Spouses will be regarded as the co-owners of the property, only if they both contributed to the cost of property. Without the expressed consent of the other spouse, neither the house nor household goods can be sold by one of the spouses.
The property is treated as community property, unless there has been a prior agreement in the marriage settlement that it will be treated as separate property, or the donor or testator has expressly provided that the gift or legacy to be treated as separate property. The property which is regarded as community or joint property will not be available for division in the end. By the means of marriage agreement, the property regarded as separate property during the marriage, might be treated as community property on divorce or death of a spouse.
There is a joint obligation of mutual support by the spouses, in relation to the expenses of the matrimonial home and upbringing of the children. The obligation may be fulfilled, either by provision of money or by working in the home. Each is obliged to keep the other informed of financial matters which affect the family income and assets.
Children and parental responsibility
Until a child reaches the age of 18, it is the joint responsibility of the married parents for their child. Joint responsibility is retained by the parents when they are divorced, unless they agree or the court decides the responsibility of the child to be vested under whom. The financial duty of the child continues even after the divorce, irrespective of which spouse has parental responsibility.
FINANCIAL PROVISION DURING MARRIAGE
Disputes concerning property and finance arise on the separation or on divorce. A spouse might apply for maintenance for him or herself and/or the children during a marriage.
Financial provision from the court
During the marriage a spouse may ask the court to order that the other spouse place necessary funds at the disposal of the applicant, because the obligation of support under section 36 of the Marriage Act 1991 is to being met. An order of child support can also be passed in some circumstances.
The state supports families with children under the age of 16 through family allowances payable monthly (under Children Support Act, 1946). In 2000, NOK 9,948 (approximately GBP 800 or EUR 1,300) was paid for each of the first and second child, and NOK 10,944 (approximately GBP 883 or EUR 1,435) for the third child and subsequent child. The support is paid to the mother if the parents live together. Extra child allowance is received by the single parents if they are not cohabiting; equal to the amount that would be payable if the parent had one more child.
There are certain rights of the non-contributing spouse towards the contributing spouse, whether it is a public, private or social security system pension. According to a particular scheme, rights accruing to the non-contributing spouse differ.
Pension rights are not affected by the separation. The right to benefit from the other spouse’s pension is retained after divorce, under a pension scheme (other than the national security scheme), provided that the marriage has lasted at least 10 years and the divorced person was at least 45 years old at the time of the divorce.
PROPERTY DURING MARRIAGE
In law, husband and wife are treated as separate legal personalities. The right of a spouse to dispose of his or her property is not affected by the marriage. This basic principle is applied whether the property sought to be disposed of is community property (‘felleseie’) or separate property (‘saereie’). The difference between community property and separate property is only of relevance when the marriage is terminated as the result of divorce or death. Therefore, the community property system is referred to as a deferred community property system. The joint property is divided between the spouses at the time of termination of marriage.
When the spouses become bankrupt, conflicts of ownership of property arise. The spouse (or the spouses together) claim that the non-debtor spouse is the sole owner and the creditors may claim that a debtor owns a certain asset. So, it might be presumed that the matrimonial home is owned by both spouses.
The spouse will be regarded as the owner of the asset, who acquired it either by way of gift, inheritance or as a result of work or payment from his or her own money. Under the general principles of property law, co-ownership in both community property assets and separate property assets may arise. In order to be able to contribute, both spouses may pay for their own assets or borrow money.
Co-ownership in assets used personally by both spouses may also arise from the fact that the acquisition of an asset has been made possible from the work that one of the spouses has undertaken in the matrimonial home. When one spouse works in the home and looks after the children, it is regarded as making a contribution in kind rather than in money’s worth and will be regarded as a co-owner. The rule of co-ownership was made by the courts under the old legislation, and the majority of homes today are co-owned by the spouses. Mostly couples buy matrimonial home rather than renting, in Norway.
The direct contribution of both the parties to the acquisition of assets leads to co-ownership. By the payment of daily expenses of the household and working in the household, a spouse may make an indirect contribution. Where the acquisition of an asset is considered by the spouses to be a joint acquisition, for example the acquisition of the common home, a car etc, and co-ownership may be the result, even if one spouse paid substantially more than the other.
Contracts and tortuous liability
The spouses may enter into binding contracts as unmarried people, during the marriage. Spouses can buy and sell property to each other and have liability in tort.
Proceedings against the property of the debtor spouse can be made by a creditor. A property in co-ownership can only be relevant to the creditors as regards the debtor’s part of that property.
Gifts between spouses
Spouses are free to give each other gifts. The transfer of ownership is made from the giver to the receiver when a gift is exchanged. Certain formalities are complied with a valid gift. However, traditional gifts (such as anniversary gifts or Christmas gifts etc) that are not disproportionate to the donor’s financial circumstances are exempted. When the donor signs the document for the gift, it must be made in writing and in front of two witnesses. Gift must be registered in the national register of marriage contracts (‘ektepaktregisteret’), if it to be valid against the donor’s creditors. Gift must be registered in the land property if it is one real property.
Occupation of the matrimonial home
There are no provisions that deal expressly with the right of the non-owning spouse to the matrimonial home. Only on separation or divorce, such disputes arise. It is decided by the court that which spouse will occupy the matrimonial home, court decides that on a provisional basis.
A spouse may not sell, mortgage, give away or lease the matrimonial home without the consent of the other spouse.
A spouse may obtain an order, to force other spouse to leave the home on being violent. Section 92(2) of the Marriage Act 1991 provides that when specific reasons exist, the court can, by order prohibit the other spouse from entering the common home. Violence is generally the specific reason.
Author: Navin Kumar Jaggi