PROCEDURE FOR DIVORCE IN SWEDEN
The procedure for getting a divorce from the spouse married in Sweden is governed by the Swedish Legislation "The Marriage Code (Äktenskapsbalken) SFS 1987:230".
Marital law cases are adjudicated by the ordinary courts of law. There are no special family courts (neither is there a Constitutional Court in Sweden). The Swedish system of general courts consists of three instances. District Courts - (Sw. tingsrätter), Courts of Appeal (Sw. hovrätter) and the Supreme Court (Sw. Högsta domstolen). The right to appeal to the Supreme Court is strictly limited.
To get a divorce decree the husband and wife together where the divorce is by mutual consent or one of them who wants a divorce have to approach the District Court in the place in which the woman or the man habitually resides. If neither of them is habitual resident in that country, in that situation the case shall be considered by the Stockholm District Court.
Where the divorce is not by mutual consent a divorce may be obtained on the following grounds as prescribed in the Swedish Marriage Code:
- That spouses shall only be entitled to divorce following a reconsideration period which begins after when the spouses make a joint application for divorce or when notice of one spouse's application for divorce is served on the other spouse. If the reconsideration period has run for at least six months, a decree of divorce shall be granted if either of the spouses then submits a separate application for such a decree. If such an application is not submitted within one year from the start of the reconsideration period, the question of divorce shall lapse. If the proceedings for divorce are disallowed or the case is dismissed, the reconsideration period shall cease to run.
In the event of bigamy, either of the parties to the earlier marriage shall be entitled to have it dissolved by divorce without a preceding reconsideration period.
If the spouses have lived apart for at least two years, either of them shall be entitled to divorce without a preceding reconsideration period.
If a marriage has been entered into despite the fact that the spouses are related to one another being sister and brother of the whole blood, or if the marriage was entered into despite the fact that one of the spouses was already married either of the spouses shall be entitled to divorce without a preceding reconsideration period.
When a decree of divorce becomes non-appealable, the marriage is dissolved.
- If both spouses want a divorce, they may make a joint application for this relief. Otherwise proceedings in a divorce case shall be commenced by an application for a summons.
- When proceedings for divorce commences, the court considers whether a decree of divorce can be granted immediately or a reconsideration period is required. A period of six months is, normally given by the court for reconsideration. An application to the court has to be made after expiry of such period within six months for considering the divorce. If no application is made the question of divorce automatically lapses.
- The question that may be considered by the court concerning maintenance payments, custody of children, children's residence and rights of access with children, the right to continue to reside in the spouses' joint dwelling until property division takes place, and the prohibition of mutual visits between the spouses.
- In a divorce case, the court may, with respect to the period prior to the determination of the question by a judgment that has become non appealable, on the application of either spouse,
- determine which of the spouse is entitled to continue to reside on the spouses' joint dwelling; however, this shall be for no longer than until such time as property division has taken place;
- Order that one spouse be obliged to contribute towards the maintenance of the other spouse.
- Before making its decision on an issue in accordance with Code, the court shall give the other spouse the opportunity to respond to the claim.
The claim for divorce can be withdrawn by the applicant applied for divorce even after the service of the notice on the other spouse, on the applicant's requests the court shall nevertheless consider the claim.
In certain cases, however, regard should also be had to the provisions of foreign law. This applies in the following cases:
- Where both spouses are foreign nationals and neither has resided habitually in Sweden for at least one year, a decree for divorce may not be made against the wishes of one of the spouses if there are no grounds to do so under the law in the State of which the spouses or one of the spouses are nationals.
If both spouses are foreign nationals and one of them claims that there are no grounds for the dissolution of the marriage under the law of the State of which he or she is a national, a decree for divorce may not be made if, having regard to the interests of the spouse or the children of both spouses, there are particular grounds not to do so.
- Spouses shall, each according to his or her ability, contribute to the maintenance needed to meet their joint and personal needs. Provisions on maintenance for children are set out in the Children and Parents Code.
- If the contribution which one spouse is to make is not sufficient for that spouse's personal needs or for the payments which that spouse otherwise attends to for the maintenance of the family, the other spouse shall contribute the money that is needed.
- Property received by one spouse from the other spouse for his or her personal needs under the provisions of Sections 1 and 2 shall be the property of the first-mentioned spouse.
- If, due to illness or absence, one spouse cannot personally manage his or her affairs and if insufficient funds to maintain the family are available, the other spouse may, to the extent necessary, draw the earnings of the spouse who is ill or absent and income deriving from that spouse's property and withdraw sums credited to a bank account and other money. However, this shall not apply if cohabitation between the spouses has ceased or if there is an authorized agent, guardian, appointed representative or administrator who is entitled to represent the ill or absent spouse in these matters. A juristic act such as is referred to in the first paragraph shall be binding on the ill or absent spouse even if the funds were not needed to maintain the family, provided that the third party concerned neither realized nor should have realized that the need did not exist.
- If one spouse neglects his or her duty to maintain, the court may order that spouse to make payments of maintenance to the other spouse.
- If the spouses are not living together on a permanent basis, one spouse shall discharge his or her duty to maintain by making maintenance payments to the other spouse. If the spouses are not living together on a permanent basis, the court may order either of the spouses to surrender household goods to the other spouse for use by the latter. However this obligation shall only encompass household goods that belonged to the spouses or one of them when they ceased to cohabit. Any agreement entered into with a third party after the court's decision shall not restrict the right to use these household goods.
Following a divorce, each spouse shall be responsible for his or her own support. If a contribution towards the maintenance of either spouse is needed for a transitional period, that spouse shall be entitled to receive maintenance payments from the other spouse on the basis of what is reasonable in view of the latter's ability and other circumstances. If either spouse has difficulty in supporting himself or herself after a marriage of long duration has been dissolved or if there are other extraordinary reasons, that spouse shall be entitled to maintenance payments from the other spouse for a longer period than stated in the second paragraph. When assessing such a right regard is to be had to the spouse's need of contribution to acquire pension insurance.
- Maintenance payments following divorce shall be made periodically. If there are special reasons to do so, such as the spouse entitled to maintenance needing a contribution to acquire pension insurance, the court may, however, decide that payment is to be made as a lump sum.
- An application for maintenance payments to be determined may not be granted for a retroactive period of more than three years prior to the date on which proceedings were commenced, unless the person liable to pay maintenance agrees.
The right to enforce a maintenance payment that has been determined shall lapse three years after the date on which the payment originally became due. If property is taken in execution in relation to the maintenance payment before the point in time referred to in the first paragraph or if the person liable to pay maintenance is adjudged bankrupt on the basis of a petition filed before that pay maintenance is adjudged bankrupt on the basis of a petition filed before that point in time, payment for the claim may be collected out of the property taken in execution or be received from the bankrupt's estate after that point in time.
In an application for enterprise reconstruction under the Act (1996:764) on Enterprise Reconstruction is submitted before the point in time referred to in the first paragraph, the maintenance payment may be enforced within three months of a decision terminating the enterprise reconstruction. If composition is brought about, the claim may be enforced within three months of the date set for completion of the composition. If property is taken in execution in relation to the maintenance payment or if a bankruptcy petition is filed within a period referred to here, the second paragraph shall apply. Agreements contrary to this section are void.
- A judgment or agreement concerning maintenance may be adjusted by the court if there are reasons to do so in view of the circumstances having changed. For the period prior to the commencement of proceedings, however, an adjustment contested by either party may only take the form of a reduction or cancellation of payments not yet made. Only if there are extraordinary reasons to do so, may maintenance payments following divorce be raised above the highest amount previously determined for such payments. A maintenance payment in the form of a lump sum may not be adjusted if the adjustment is contested by either party. A maintenance agreement may also be adjusted by the court if the agreement is unreasonable in view of the circumstances which existed when it came into being and the overall circumstances. However, repayment of maintenance already received may only be ordered if there are special reasons for making such an order.
EFFECTS VIS A VIS PROPERTY AND CHILDREN PROPERTY
After a divorce, the couple's property is to be distributed between them. The general principle is that the property is shared equally. It is worth mentioning that the question of which of the couple is at fault for the dissolution of the marriage is entirely irrelevant as regards the division of the couple's property.
After a divorce, the couple automatically continues to have joint custody of their children. A court may however, terminate joint custody
- on the court's own initiative, if the court finds that joint custody is manifestly incompatible with the welfare of the child, or
at the request of one of the spouses, if the court finds that it is in the best interests of the child for one of the spouses to have sole custody.
If both spouses request that joint custody be terminated, the court is obliged to comply with the request.
Both parents are responsible for the maintenance of their child. The parent who does not live together with the child fulfils the maintenance obligation by paying maintenance contributions for the child to the other spouse.
PROCEDURE WHERE A DECREE FOR DIVORCE/LEGAL SEPARATION/MARRIAGE ANNULMENT MADE IN ANOTHER MEMBER STATE RECOGNISED IN SWEDEN
Under Council Regulation (EC) No 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (the Brussels II regulation), a judgment given in a Member State is to be recognized in the other Member States without any special procedure being required. There are, however, certain grounds for non-recognition.
The main principle under the Brussels II regulation is therefore that a decree for divorce or legal separation or marriage annulment that has been made in any other Member State must automatically be treated in the same way and have the same legal effects as an equivalent Swedish decision. Even though the regulation is therefore based on the principle of automatic recognition, it is still possible for an interested party to obtain a declaration that the foreign judgment is or is not recognized in Sweden. Such an application is made to Svea Court of Appeal, which at this stage takes a decision on the application without hearing the opposing party.
If Svea Court of Appeal has declared in such proceedings that the judgment in question is to be recognized in Sweden, it is possible for the other party to apply for a review of that decision. An application for such a review is made to Svea Court of Appeal, which will hear both parties in the remainder of the proceedings. An appeal can then be lodged with the Supreme Court against the decision on the application for review by Svea Court of Appeal.