FAMILY LAW IN SWEDEN.
Sources of family law
Swedish family law is based mainly on the Marriage Code (1987) (‘MC’) and the Code relating to Parents, Guardians and Children (1949) (‘PGCC’). Family law also includes the law relating to cohabitees, covered by the Cohabitees (‘joint home’) Act (1987:232); the related Homosexual Cohabitees Act (1987:813); and the Partnership Act (1994:1117). In the broader sense, the law relating to succession, which is regulated by the Inheritance Code (1958) (‘IC’), is also a part of Swedish family law.
In Sweden, there are no special family courts. Ordinary public courts hear family law cases; the court of first instance is district court (‘tingsratt’), with the possibility of appeal to the court of appeals (‘hovratt’). The correct forum for parties is the district court for the area in which one of the parties resides. The case will be heard by the Stockholm district court, if neither of the parties is resident in Sweden.
By way of an application for review (a review petition) to the Supreme Court (‘Hogsta domstolen’), appeals from courts of appeal are made. For a review dispensation to be granted it is required that (a) the case is of importance for guidance in the application of the law that the case is heard by the Supreme Court, or (b) that extraordinary cause exists for such review, such as that a ground exists for relief for substantive defects or that there has been a grave procedural error or that the outcome of the case in the court of appeals was plainly due to a gross oversight or gross mistake.
While there are no special family court in Sweden, there are nevertheless certain special procedural rules which are applied in family law cases, apart from those under the Code of Judicial Procedure, relating, for example, to the composition of the court and trial costs.
Adjudication of disputes
Where cases relating, for example, to divorce, custody, access or determination of paternity are heard by the court, the court is not bound, when reaching its decision, by any prior agreement, approval or admission by or between the parties. This is known as a ‘mandatory’ (‘indispositivt’) case, which required that the court take an independent stance. Cases relating to the economic relationship between parties, such as claims for maintenance or distribution of property, are treated as non-mandatory cases, in which the courts regard themselves as being bound by the parties’ admissions and consents.
In Sweden, legal profession is unitary. All aspects of a case are dealt by lawyers, both in and out of court. A number of lawyers do specialise in family law, but there is no specialist family law association.
Qualified lawyers have a law degree and, when sufficiently experienced, may also be admitted to the Swedish Bar and use the title of ‘advokat’. A public defence counsel must be an ‘advokat’, however, very few restrictions or monopolies on legal work are there.
The Legal Aid Act (1996:1619) contains provisions on legal advice and legal aid. In aggregate, at most two hours, advice is provided by the act by an ‘advokat’ or assistant lawyer at an advokat’s law offices. Charge made for the advice is paid to the advisor. According to the financial circumstances of the applicant, these charges may be halved. The charge may be completely waived, if the applicant is a minor i.e., under the age of 18. The advisor is compensated out of public funds, if the charge has been reduced.
Legal aid may be granted to natural persons whose ‘financial base’ does not exceed SEK 260,000 (approximately EUR 28,260). ‘Financial base’, in this context, means the estimated annual income after taking into account maintenance obligations and also the applicant’s wealth and indebtedness. The estimated annual income is reduced by SEK 15,000 (approximately EUR 1,630), to a maximum of SEK 75,000 (approximately EUR 8,150), if the legal aid applicant contributes to the maintenance of a child. If the legal aid applicant’s payment capacity is materially enhanced or impaired as a result of wealth or indebtedness, respectively, the estimated annual income is adjusted upwards or downwards.
A legal aid charge shall be paid by a person, who has been granted legal aid, which is decided having regard to the cost of the legal assistance and the applicant’s ‘financial base’. The legal aid charge is charged at a fixed percentage of the legal aid costs, namely at least 2% of this if the ‘financial base’ does not exceed SEK 50,000 (approximately EUR 5,440), and at most 40% of the costs; however, if the financial base exceeds SEK 200,000 (approximately EUR 21,740), the charge is minimum of SEK 5,000 (approximately EUR 543). The percentage rate for computation of the legal aid charge is determined when legal aid is granted. Court decides the legal aid case under Legal Aid Act. In other cases, the National Legal Aid Authority decides.
The Lugano Convention is incorporated into Swedish law; the definition of ‘domicile’ used in Sweden is contained in the Convention. In practice, ‘domicile’ is defined in almost the same way that the term ‘habitual residence’ is in England. If a person is living permanently in a country, he or she is considered to be domiciled in that country. The length of the time that the individual has been living in the country and other relevant circumstances are taken into account by the court before considering him or her as ‘permanently’ settled.
THE CREATION OF A VALID MARRIAGE
In order to marry in Sweden a man and a woman must have the capacity to marry, and must comply with certain specified legal formalities.
Capacity to marry
In order to contract a valid marriage, parties must:
be at least 18 years old. The age of capacity is set at the same age as that of majority. However, persons under the age of 18 may marry if they obtain the permission of the Country Administration Board. The board will not only give such permission after hearing the views of the custodians and the Social Welfare Committee.
not be related to one another in a direct ascending or descending line, or be a brother or sister of full-blood. No dispensation can be given from these impediments. If a marriage has been entered into in conflict with this impediment, it should be dissolved by divorce. Half-sisters and –brothers may, in exceptional circumstances, receive dispensation to marry one another. Adoptive children and parents may, at present, marry one another; such a marriage has the effect of ending the adoption and all its legal consequences.
not be already married. Bigamy is a criminal offence, punishable by a fine or imprisonment. If a marriage has been entered into in conflict with this impediment, one of the marriages shall be dissolved by divorce.
Party to marriage must possess legal competence, besides these three obstacles to marriage.
Inquiries as to whether there is an impediment to marriage are conducted by the authority responsible for registration of the population (now the County Tax Authority). Where a person who wishes to marry in Sweden is not registered in Sweden, that person shall produce a certificate as to his or her capacity to enter into a marriage from his or her home state if such a certificate can be obtained. According to the travaux preparatoires (which are now very old), one should not place too great a burden on the person concerned to provide a certificate, but neither should one merely accept a person’s contention that a certificate is unobtainable. If, however, it may be concluded that a certificate cannot be obtained this should not in itself compromise an impediment to the marriage. A man and a woman who wish to marry each other have the right, in Swedish law, to take an oath that there is no impediment to marriage by reason of family connection or bigamy.
In private international law, the main rule is that the right to enter into marriage is determined according to the law of the state where the person concerned is a national (‘lex patriae’). However, if a Swedish national has had his or her habitual residence in another state for at least two years, the right to enter into marriage may be determined in accordance with the law of that state if the other party to the prospective marriage consents.
Even if the right to enter into marriage could, in the case in question, be determined by foreign law, those under 15 years of age may not enter into marriage without the consent of the Country Administrative Board.
Formalities of marriage
Swedish law no longer requires any public proclamation of a proposed marriage. The requirement that banns be published ended in 1968. Banns may still be published, but purely as a religious formality.
Solemnisation of marriage may be observed during the solemnisation of marriage:
In order for a marriage to be legally valid, both the man and woman must be present at the same time. Marriage by proxy is not possible in Swedish law.
Each party must, separately, in response to a question put to them by the person solemnising the marriage, declare that they consent to the marriage.
The parties must be declared husband and wife by the person solemnising the marriage.
The person solemnising the marriage must be lawfully authorised to do so. Person lawfully authorised to solemnise marriage are, in the case of an ecclesiastical marriage, a priest in the Church of Sweden, or a priest or other officer of another religious community, if the national Judicial Board of Public Lands and Funds has granted that community the right to solemnise the marriages. The right to solemnise the marriage has been granted to a different communities; for example, the Roman Catholic Church, the Church of England and the Jewish communities of Stockholm, Gothenburg and Malmo.
The marriage code requires that the marriage be entered into ‘in the presence of relatives and other witnesses’. However, this formal requirement is not such that non-compliance would lead to the invalidity of the marriage.
If extraordinary reasons are shown then the government will subsequently approve the marriage, even when the marriage is invalid on account of a failure to comply with these requirements.
Recognition of foreign marriage
According to the law of the state in which the marriage was performed, marriage is considered to be formally valid.
The marriage will be regarded as formally valid if it is valid in the state which gave the authorisation, when celebrated by a diplomatic or consular representative or any other person authorised by the foreign state.
A marriage celebrated outside Sweden will also be regarded as formally valid if it is valid in the state or states of which the husband and wife were citizens.
THE LEGAL CONSEQUENCES OF MARRIAGE
Marriage creates a status from which certain rights and duties flow.
Swedish nationality may be acquired under inter alia the following rules:
Under the Swedish Citizenship Act, children acquire Swedish citizenship if:
the mother is a Swedish citizen; or
the father is Swedish citizen and the child was born in Sweden or the father is married to the child’s mother; or
the father has died, but at the time of his death he was a Swedish citizen and the child was born in Sweden or the father was married to the child’s mother.
Where the children are born to a Swedish father and non-Swedish mother outside of marriage, the children become Swedish citizens if their father subsequently marries their mother. The granting of citizenship consequent upon the marriage of the parents only occurs if the child is unmarried and under the age of 18.
If a child has not acquired Swedish nationality under the rules mentioned above, but the father is a Swedish national (and has been that since the birth of the child), the child can acquire Swedish citizenship by the father giving notice of such a wish to the Migration Board before the child has attained the age of 18. If the child has attained the age of 12 and is a foreign citizen, the consent of the child is, in principle, required. The child’s custodian shall also consent to the acquisition of Swedish citizenship.
A foreign child under the age of 12 who is adopted by a Swedish citizen becomes a Swedish citizen directly on adoption, provided that either the adoption takes place in Sweden or other Nordic country, or the child is adopted in another country by an adoption decision approved of in Sweden.
A child that does not have Swedish citizenship can acquire Swedish citizenship upon application by the custodian or custodians of the child provided the child has (i) a permanent residence permit in Sweden, and (ii) has been resident in Sweden for five years or, if the child is stateless, three years. The application shall be made before the child has attained the age of 18. If the child has attained the age of 12 and is a foreign citizen, the consent of the child is, in principle, required.
A foreign national who has attained the age of 18 but not 20 can acquire Swedish citizenship by applying to the Migration Board, provided he or she has (i) a permanent residence permit in Sweden, and (ii) has been resident in Sweden since he or she attained the age of 13 or, as regards a person who is stateless, the age of 15 years.
The Names Act (1982:670) contains the rules relating to names that may be taken by spouses and children.
On marriage, parties may choose to take the other party’s surname as a common surname they had immediately prior to the marriage. A name may be adopted as a common surname only where the person whose name is to be adopted consents, and the name has not been acquired by reason of an earlier marriage. The choice of name must be notified to the County Tax Authority, which is the agency responsible for national registration, no later than the time of marriage.
A spouse who has retained his or her surname may subsequently apply to the national registration authority, with the other spouse’s content, and take the other spouse’s surname. Equally, a spouse who has adopted the other spouse’s surname may, on application to the national registration authority, change to the surname he or she last bore when unmarried. It is also possible to apply to use either his or her own, or the other spouse’s name, as a middle name.
The child acquires the surname, if the parents have a common surname. Even if parents have different surnames, but already have one or more children together who are in their custody, then the child will acquire the same surname as the last born sibling. The parents may apply to the national registration authority, immediately after the birth of child.
The child acquires the surname notified to the national registration authority within three months of the child’s birth, if the parents have no other child. The child is deemed to acquire mother’s surname, if parties fail to register the surname. The same is applied when paternity is determined within three months of birth.
An application may, at any time, be made to change a surname. Where an application is made to change a child’s name, the parents must consent, or the court must consider the change to be in the child’s best interests. An application is made with the child’s approval, if the child has reached the age of 12.
As provided under Marriage Code, spouses shall ‘share expenditure and practical responsibilities with one another’ and supply each other with the information needed to enable the ‘financial circumstances of the family to be assessed.’ Generally, the duty to provide information relates to the spouse’s economic position. However, these provisions are not subject to any special sanction.
Children and parental responsibility
It is provided under the Marriage Code that spouses shall jointly take care of their home and their children and, in consultation, promote the best interests of the family.
Unless the court has entrusted custody to one or two special custodians, children are regarded as being in custody of both parents or one of them. Custody continues until the child reaches the age of 18, or marries.
FINANCIAL PROVISION DURING MARRIAGE
The spouses have the right to enjoy the same economic living standard and they are also liable, according to their individual ability, to contribute to ‘their joint and personal needs’.
Financial provision from the courts
The court may order that spouse to pay maintenance to the other spouse even if the spouses live together, if one spouse neglects his or her maintenance obligations. Such an order is rarely made in practice. One spouse may obtain an order from the court establishing the other party’s maintenance obligations, if the spouses do not live together. The cases in which spouses do not live together during the reconsideration period, the possibility of maintenance order during the subsistence of a marriage is of greatest practical importance.
PROPERTY DURING MARRIAGE
During marriage, each spouse continues personally to own that property which he or she owned on marriage or personally acquired after marriage. However, if property is purchased or acquired by the spouses together it may be considered ‘joint property’.
When one spouse appears to be the owner, there was a common intention to acquisition that the property should be joint property; the property is treated as joint property. This is normally proved by evidence that the ‘hidden’ spouse has made an economic contribution with the object of becoming a joint owner and the ‘open’ owner was conscious of this purpose. ‘Hidden’ ownership does not have effect in relation to third parties, such as the ‘open’ owner’s creditors, unless the joint ownership has been determined by a judgement which has been put into legal effect, or where there has been a formal transfer from the ‘open’ to the ‘hidden’ owner.
When the property is not regarded as a spouse’s separate property, because of the marital agreement, it is regarded as ‘deferred community property’ (‘giftorattgods’). On death or divorce, the deferred property comes into effect. Under this system, each spouse has, in principle, a right to half of the aggregate values of both spouses’ deferred community property after the deduction of debts.
Under a marital property agreement, the spouses may decide between themselves which property is to be treated as separate property. They may, for example, agree that:
Everything that either of them brings into the marriage or subsequently acquires shall be the separate property of that property;
Only certain property, such as a home, belonging to one of the parties should be that spouse’s separate property; or
If the spouses initially agreed in a marital property agreement that property should be regarded as separate property, they may subsequently agree, through a new marital property agreement, that the property shall be deferred community property.
Marital property agreement must be signed by the party and must be in written. The agreement is not valid until it has been submitted to the district court for registration. The district court forwards the registered agreement ‘Statistics Sweden’ (‘Statistiska centralbyran’) who maintain the marriage registry for the whole of Sweden.
If the marital property agreements are regarded inequitable, they are set aside by the court.
A spouse’s property may also be separate property as a result of conditions attached to a gift from a third party, including a gift received through inheritance or a will. Property that is subject to such conditions may not be transformed into deferred community property by a spouse through a marital property agreement. However, the owning spouse may sell, or by other means dispose of, the property in question where the conditions do not impose a restriction on transfer.
Property that has replaced separate property (‘surrogate’ property), such as a new house, is also counted as separate property unless the marital property agreement or any applicable condition of a gift, inheritance or will provides that it should be treated as deferred community property.
Yields from separate property, such as share dividends or rents from property, are considered to form part of the deferred community property, provided the marital property agreement or conditions attached to the gift, inheritance or will do not lay down that the yields of separate property should also themselves be separate property.
An agreement between the spouses might be made as to the ownership of property, or donate gifts to each other, thus transferring ownership of assets.
For the protection of spouses’ creditors, special rules exist.
In order to take effect against creditors, a gift between spouses must be registered in a district court (‘tingsratt’). Effecting the gift to Statistics Sweden for entry in the national marriage registry, court forwards a copy of the document. The court also arranges the proclamation of the gift in the Official Gazette (‘Posh-och Inrikes Tidningar’) and a local newspaper. This publication is not, however, a necessary condition for the validity of the gift against the donor’s creditors. The requirement of registration of the gifts does not apply to customary presents such as normal Christmas presents.
Liability for debts
Each spouse is liable for his or her own debts. They are responsible for joint debts, when spouses have taken on joint debts. <