Introduction to Family Law

Stockholm April 2005

Even if it is just for a relatively short period of time, moving (and living) abroad is never easy. You will probably find that everyday life can be an adventure. Understanding the school system or obtaining medical treatment is most likely a maze, and more complex questions like how your visit abroad might affect your legal position might just seem too overwhelming.

Each country with sovereignty has its own rules and regulations, regarding both domestic and international law. International laws do not at all times comply, though international conventions to avoid concurring jurisdictions are developing around the world.
In order to avoid unexpected consequences, it is of great importance to investigate if, and in what ways, living abroad might change your legal status. Not doing so might put you and / or your family in a situation with results that might seem both harsh and unfair.

Family law is a complex institute – both national and international- and despite general rules, most situations are all but general. The following article aim to arouse questions necessary to investigate, and maybe act upon, before leaving (or arriving in) Sweden, but it won’t give you the answers. For those already abroad; used as a reference the following reading might give an indication of what to further engage into.

Familiar to Swedes, nonsense to Chinese and vice versa

Rules we take for granted (and perhaps even consider fair and just) might be as surprising to others, as they are obvious to us. The fact that we for instance have regulations giving certain rights for co-habitués and for homosexual relations, are two examples, that differ from the legislation of some other countries.

When it comes to international private law, there are three main issues, of which awareness can be useful in order to understand the systems.

1. Jurisdiction –which court is to handle the case?
2. Applicable law – which law is the decision to be based upon?
3. Execution – can the court-order be carried out?

To simplify, each country has first of all its own internal laws, regulating for instance whom one can marry, when a divorce can be granted, regulations about paternity and custody of children, inheritance etc.

Each country will also have its own international laws; regarding in which country you may start proceedings; which law will be applicable etc.

Furthermore, there are also multinational treaties and conventions between the countries in order to, amongst other things, regulate the international side of these problems. Sweden for instance has indeed ratified quite a few, as have numerous other countries.

The European Union is also developing a system within the Union; the most recent convention is called “Brussels II”, a convention dealing mainly with jurisdiction and the enforcement of decisions in matters of Family Law.

Below you will find a discussion about some of the issues that you might want to consider if you (and your family) intend to move abroad (or are already living abroad). Again this is not meant to give you anything other than a general idea of the situation mainly in relation to Swedish law, and it cannot be used as any kind of legal advice. The laws of other countries may say differently on various aspects of what is described, along with international Conventions and Treaties that may also affect the situation.

Furthermore, unless otherwise referred to, this article will not deal with the matter of enforceability of Swedish (or foreign) orders, since this rather would be a whole article in itself.

Marriage

With marriage comes a variety of legal rights and duties to both society and each other. Being aware of, and prepared for, how moving abroad might affect these matters can ease a situation that might be hard to foresee.

As mentioned above, the EU is striving to simplify movement within the Union. One step is the new convention, Brussel II that came in to force 1st March 2005. Among other things it states that marriages accepted by a court in any of the signing states are, without any further procedure, to be given the same legal status within all parting countries. Regarding countries outside the union, a marriage that is valid in the country of ceremony will in most cases be valid in other jurisdictions, but it is possible that even the marriage itself might need formal actions to be considered as a proper legal institute in your country of destination.

Registered partnership

As known to most people, couples of same sex can in Sweden register partnership. This will, in Sweden, basically give the couple the same legal status as a heterosexual marriage with a few exceptions such as regarding adoption. However many countries do not recognize homosexual partnerships, so an investigation regarding if and in what ways the partnership is legally recognized in your new country of residence is important.

If it is not, the registered partners should (at least try to) make sure to secure their legal positions in other ways, for instance by making wills that are valid in the new country of residence, or to organize that they own their assets in a way that, in case of death or divorce, ensures the protection of their choice for each of the partners.

Co-habitation

Choosing not to marry is quite common in Sweden.

Maybe that is one of the reasons for the Swedish laws concerning the shared home and household for those who choose to live “under matrimonial circumstances” without actually being married. The relationship does not have to have lasted for very long in order for the laws regarding co-habitation to apply. The law of co-habitation basically states that unless otherwise agreed, co-habitués are, upon separation (by will or death of the other co-habitué), entitled to share the property (or the value of that property) regarding their place of residence and the parts that are obtained for common use, like furniture etc.

It is important to notice that this only applies if the place of residence or property is determined to have been obtained for the common use of the co-habitués. The parties can agree on other kind of solutions, an arrangement which will be valid without further registration.

It is also extremely important to know, that co-habitués do not inherit each other, without providing for this in their will.

The regulation regarding co-habitués is not an institution that is internationally known and recognized to any greater extent. Again if you are planning to move abroad, or indeed are already living abroad, you should look into the regulations of the country of your new residence.

Divorce

Planning the unthinkable is maybe more strange than difficult. But it is of major importance to avoid finding yourself in a practical or financial situation you neither expected nor would have chosen had you foreseen it.

According to Swedish internal law, a divorce can be roused through a joint written application, or by one of the spouses filing a written summon against the other. If there are children under the age of 16 living with one of the spouses– a period of 6 months consideration is compulsory before the Court can grant a decree absolute (unless the parties have been living separately for more that two years).

For persons within the Nordic countries and the members of the European Union (see above about the Brussell II-convention), specific rules apply.

Division of Assets

In case of a divorce (or in the case of death of one of the spouses), Swedish internal law states that a division of property between the spouses (or the widow/widower and the deceased‘s estate) should be done.

Swedish law consider both parties as owning their own property within the marriage. Even if they are co-owners, they are considered as owners to specific (equal) shares of the property. Spouses might both own parts of the same property, but the ownership is not considered blended so to speak.

The general rule is that what the parties own is regarded as their community property.

A division of property basically means that the value of all assets (unless held as specified separate property through for example a marriage contract or by way of a clause in a letter of gift or in a Will); the house / houses; car/cars; stockholdings; cash; savings etc. is added together to a value from which each spouse’s debts are deducted, which adds to a total value then divided in two.

The general rule is to ignore who earned the most or brought most into the relationship, but if the result is unreasonably unfair, due to for example a short relationship, this may be considered.

If the parties themselves cannot agree on the division of property, an independent lawyer is appointed by the Court to carry it out. Her / his decision can then be appealed against.

But, unfortunately, this is not all. You must also remember that what has been referred to above is only (very simplified), Swedish internal law. As been said above, you will also have to consider international laws and maybe even the national laws in your “new country”.

If the Divorce is heard in Sweden, the Court would, following an application by one of the parties, appoint an arbitrator to deal with the matter of Division of Assets (there are also other situations when you can apply for an Arbitrator to be appointed).

According to SWEDISH law, couples may, due to party autonomy, choose which law to be applicable in relation to Division of Assets in case of a divorce or death. The choice can, in accordance with Swedish law, be stated in a marriage contract, or indeed in a written agreement. It is as you all understand extremely important to make sure that any agreement you enter into is valid in all countries that may have jurisdiction to deal with a matter of Division of assets, and in accordance with any law that might be applicable!
And please, also remember that what has been referred to is only the Swedish law (national and international), and laws of other countries may be different.

If the parties choose not to, or ignore to, together decide on applicable laws in advance, there is since 1990 a Swedish law stating that if a couple (married or co-habiting) has had their residence in a country for more that two years, that country’s law would be applicable to the financial relations between the parties. (As you all can understand there will of course be discussions about if and when the couple has obtained residence in the new country). To keep it short and sweet; a person should be considered to have residence in a country if the stay in that country can be “regarded as permanent when considering the duration and other circumstances”. Furthermore, if the couple has just married, the law of the country in which they had (or took) residence in, in close connection with the marriage, will be applicable on their financial relations.

Marriage Contract

Through a pre-matrimonial agreement, the spouses (or indeed future spouses), may enter into a marriage contract, which should be registered at a Court.

The spouses can agree that some or all of their assets should be their respective separate property, which means that the property won’t be included in the Division of Assets.

As mentioned above, the spouses can also agree that the laws of a specific country should be applicable on their financial issues. A clause with choice alone won’t be considered as a proper marriage contract.

Spousal support (alimony)

Spousal support (alimony) is in Sweden a question separated from for example the division of property. The situation can become quite complicated, since the financial questions are not primary considered by the same decision-maker; questions about spousal support (alimony) are heard by the Court, but questions about Division of Assets are firstly heard by an Arbitrator (see above).

As a general rule one can say that the Swedish Courts will have Jurisdiction to try a question about maintenance etc. if the receiving spouse is resident in Sweden. However there are circumstances which Swedish Courts may have Jurisdiction to deal with the matter, even though the receiving spouse is not a resident of Sweden (for instance if the matter is heard within divorce proceedings). There are also treaties and conventions that might suggest differently, which you need to investigate.

If the receiving spouse is residing abroad, again, the general rule is that the law of that country should be applicable when determining spousal support (alimony).

The general rule in Sweden is that after a Divorce, each party should be responsible for him- or herself. It is therefore rare that the Swedish Court would grant an application regarding alimony to an ex spouse (at least for longer periods), and the amounts are often - in relation to other countries - low.

Children

In Sweden, children are automatically regarded as being under joint custody. A separation does not in itself affect the caretaking of the children. A foreign order as to custody, visitation etc. will not, unless otherwise stipulated in law, be recognized in Sweden. In countries within the European Union, the other Nordic countries and other countries that have ratified The Hague convention on child abduction from 1980, certain rules and regulations for recognition and enforcement have been agreed upon.

We cannot here give more specific details as to these treaties/conventions, but, it is essential that you take advice before any move. In particular this needs to be done, if you intend to move back with the children (or remain in another country other than the habitual residence of the children) without the consent of the other parent (/caregiver), since this might well be against the custodial rights of that parent and could be regarded as a wrongful removal/retention. Accordingly great caution needs to be taken.

The general rule is that all decisions in relation to custody/residence and visitation should be handled in the country where the child is considered having its so called habitual residence. Again, there are circumstances that would mean that Swedish Courts will have Jurisdiction to deal with matters even though a child is resident outside of Sweden, and there are also Treaties and Conventions that might suggest differently. These are also matters that you should look into particularly.

Rule number one in Sweden is that the child has a need of contact with both parents, and preferably through joint custody. The parties may also make an agreement as to custody etc, but for enforceability this agreement has to be confirmed either with an Order by Court, or by the social authorities. If parties cannot agree, the Court will decide upon these matters.

Support

Support for children is, unless the children live 50% with each guardian, mandatory. Even though child support is based on the needs of the child and the ability of the giver, the sum is often comparably low in Sweden.

As a general rule one can say that the Swedish Courts will have Jurisdiction to try a question about support etc. if the children are dependant on a spouse that is resident in Sweden. Again there are circumstances that would mean that the Swedish Courts may have Jurisdiction to deal with matter, even though the child is resident outside of Sweden (for instance if the matter is heard within divorce proceedings) and there are also Treaties and Conventions that might suggest differently.

If the matter is heard in Sweden despite the child residing abroad, equally the general rule is that the law of that country should be applicable when determining maintenance.

In case of death

Planning and discussing something that might be your biggest fear , death, is naturally difficult. However, you would not like to depart from your loved ones, who are grief stricken, and leave them to sort out difficult legal matters, (or fight about them). This needs careful planning as well!

Division of the estate

As has been said above, Swedish law states that upon death of one of the spouses, the same kind of Division of Property as after a divorce will take place. The division will then, accordingly, be made between the surviving spouse and the Estate of the deceased. This must not be confused with the rules of inheritance which is distribution of the actual estate, and something that will happen after the Division of Assets.

But, as you can understand, this might become extremely complex if there is no (valid) choice of law, and if the new country of residence does not have rules of Division of Assets upon death or indeed rules that work differently.

Regarding inheritance, Swedish law states as a general rule that the surviving spouse will inherit everything, if there are no children or only joint children of the spouses. The children will get a deferred right, and they are entitled to receive their share only when the surviving spouse dies. Children from other relationships, outside of the marriage, can claim their share immediately.

If the deceased was not married, or indeed “only” co-habiting, the children will be the legal taker of the heritage (again the deceased’s co-habitué will not inherit, without special provision in the will). In Sweden we also have rules of forced shares for children (or grandchildren if a child has died); the legally recognized siblings have the right to share half of the deceased’s property (after the Division of the Assets has been made).

(If there are no children (or grandchildren), there are numerous rules we cannot go further into here).

Swedish law states that, regarding the inheritance itself, Swedish law is applicable to all Swedish citizens (in accordance with the nationality principle). But assume that the deceased had double citizenship or if the law in the country where the deceased was resident (and or domicile), said that this law should be applicable, you might find that two (or sometimes indeed several laws) might be applicable at the same time.

The matters might become extremely complex, in particular since, the various laws might well differ!!

Wills

In Sweden, you can basically give away your property to anyone you like by way of a Will, apart from the children’s (and grandchildren’s – see above) rights to their forced share. Accordingly the surviving spouse has no rights to a forced share. There is a small protection though saying that if the surviving spouse’s own property won’t cover the amount of four times the basic amount for national social security, he or she has a right to receive property covering a value up till that sum.

A will according to Swedish law has to be signed by the testator, with two witness present who confirms that the testator signed the testimony by free will and fully conscious of his or her actions. They do need to know that it is a Will they are witnessing, but they do not need to know its contents.

Swedish law would accept foreign Wills, IF they are properly drawn up in accordance with the law in the country of establishment.

Again, since different laws might be applicable simultaneously, a general advice is to make sure that your Will is valid in the country of your nationality (if applicable), in your country of residence (and/ or domicile) and also in the country where you have assets (quite a few countries have specific rules as to real estate for instance).

Meet the Swenson family

Understanding above exposed systems is not always crystal clear. Therefore, a practical example of these matters might be helpful. Below you will follow a quite normal family (if such a one exists nowadays) on their adventures abroad.

We ensure that all persons and situations have been made up, and any similarities to any real people or situations are purely circumstantial.

The family consist of Mr and Mrs Swenson, who have been married since 2000.
Together they have one child, Adam who is 3. From a previous relationship, Mr Swenson also has Cecilia, who is 6.

Mr Swenson works for a multinational company, and when presented with the opportunity to spend some time abroad – he just cannot resist. He persuades the family to come along (all but for Cecilia, who lives with her mother). Said and done – the family moves to Germany.

They get some advice as to the tax situation, pensions insurances etc. and of course they get the housing, day care and other practical things sorted out. They do not get advice (or very little) that relates to what would happen in case of Divorce or Death (which they would presumably not have wanted to listen to in any event, now that they are on their way to the great adventure).

They stay in Germany for the full assignment (three years and then also the optional year), all in all four years. Whilst in Germany, they have another baby, David. They also sell their house in Sweden, since it was too complicated with tenants, and also because they now need a bigger house. While at it, both Mr and Mrs Swenson’s write to the Swedish tax authorities, requesting that they should no longer be regarded as tax residents, since they have no relevant connection to Sweden.

When the end of the fourth year approaches, Mr Swenson gets another offer, this time to Saudi Arabia. Reluctantly Mrs Swenson accepts.

They move to Saudi Arabia, expecting to stay at least for a period of three years.

Unfortunately after just a year, it turns out that Mr Swenson has had an affair with his secretary.

Mrs Swenson wants a divorce. And she wants to go home.

This raises a serious of questions, for instance;

1. In which country/countries can she file for divorce?
a. Sweden
b. Saudi Arabia
c. Germany
d. Other
2. Does she need reasons for the Divorce in any of the Countries, which laws might be applicable?
3. Which law governs the actual Divorce, in each respective Jurisdiction?
4. In which Country can you request that a Division of Assets are tried?
5. Which law is applicable on Division of Assets in each respective Jurisdiction?
6. Where would she be better off?
7. If there is a Marriage Contract, is this valid?
8. Spousal Support/Alimony? Where would she be better off?
9. Custody of the Children?
10. Can she take the children back to Sweden?
11. Maintenance for the children?
12. Other issues?

Ponder that Mr Swenson, instead of having an affair, dies. Other problems would then arise, for instance;

1. Applicable law on Division of Assets?
2. Applicable law on the actual inheritance?
3. If there is a Will, is this valid?
4. In which country should Probate (or similar) take place?
5. Inheritance - or other taxes?
6. Other issues?

As you all understand, these are only some of the problems that might arise, there are certainly quite a few more. The purpose with this article is merely to show that a move to another country might not only be a great adventure, but could expose you and your family to quite a few cultural shocks also in the juridical area. You could find the consequences surprising, and unfortunately many times also perceive them as shockingly unfair. In order to prevent finding yourself there, you do need to be clear about your legal issues and standards, and in that way; prepared.