SWEDISH DIVORCE LAW
Requirements to obtain a decree of divorce in Sweden
There is only one kind of divorce in Sweden. It arises irrespective of whether or not the couple are in agreement. Under certain circumstances the divorce must be preceded by a six-month period for reconsideration. That is the case:
- if both spouses request a period for reconsideration,
- if one of the spouses lives permanently together with their own child who is under the age of 16 and is in the spouse's custody, or
- if only one of the spouses wishes for the marriage to be dissolved.
In certain exceptional cases, however, couples covered by the above points also have the right to divorce without a period for reconsideration. That is the case if the couple has been separated for two years, if the marriage was entered into even though the spouses are related to one another in a direct line of ascent or descent or are full brothers or sisters, or if the marriage was entered into even though one of the spouses was already married or a partner in a registered partnership and the previous marriage or partnership has not been dissolved. In such cases, divorce proceedings can also be brought by the public prosecutor.
A spouse always has the right to obtain a decree for divorce and does not need to rely on any special grounds for such a decree.
Consequences of divorce
a) The couple's personal circumstances
If one of the spouses adopted the other spouse's surname when the marriage was entered into or during the marriage, the spouse has the right to revert to the surname that they last used before their marriage.
b) Division of the couple's 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 continue to have joint custody of their children. Joint custody may, however, be terminated by a court
- 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.
After the divorce, the spouses are responsible for their own provision. Exceptions apply only in certain special circumstances, e.g. where one spouse has difficulty providing for themselves after a long marriage has been dissolved or if there are special grounds.
There are no rules governing marriage annulment in Swedish law. A marriage can be dissolved in two ways: if one of the spouses dies or if a court makes a decree for divorce.
Can issues relating to divorce be resolved in any way other than by bringing court proceedings?
Only the court can decide to dissolve a marriage by divorce. There are, however, alternative options for resolving the various issues that may arise in connection with a divorce.
The couple may obtain "family advice", which seeks to deal with cohabitation conflicts in couples and families. In that way, couples can first of all get help in resolving problems and conflicts, so that they can continue to live together and therefore avoid divorce. If there is already a de facto separation, the family advice service can instead help to alleviate the conflict and make it possible for the adults to operate together in a parental role. Family advice is provided by both public (municipal and county council) and church bodies and by other private individuals. Municipalities are responsible for ensuring that family advice is offered to anyone who requests it.
The couple also has the right to "cooperation discussions". These discussions are not geared to the relationship between the adults, but to the children. Cooperation discussions seek primarily to create agreement on issues relating to custody of the children, the children's residence and access to the children. Cooperation discussions are chaired by experts. Municipalities are responsible for ensuring that cooperation discussions are offered to anyone who requests them.
If the couple wishes to make a change with regard to the custody of their child, this can be done by concluding an agreement on the matter and such an agreement can subsequently be approved by the social welfare committee. Questions of the children's residence and questions of access to children can also be resolved in a similar way.
In which courts are applications for divorce/legal separation/marriage annulment made? What requirements must be observed there and what documents have to be enclosed?
The first condition in order to be able to file a petition for divorce to a Swedish court is that the Swedish court must actually have jurisdiction to hear the case. That is of course the case where both spouses are Swedish nationals and live in Sweden. But Swedish courts also have jurisdiction in the following cases:
- where both spouses are Swedish nationals,
- where the petitioner is a Swedish national and is habitually resident in Swedenor has previously been habitually resident in Sweden since he or she reached the age of 18,
- where the petitioner is not a Swedish national, but has been habitually resident in Sweden for at least one year,
- if the respondent is habitually resident in Sweden.
If it is demonstrated that a Swedish court has jurisdiction to hear the divorce proceedings, the case is heard by the district court in Sweden within whose circuit the woman or the man is habitually resident. If neither of them is habitually resident in Sweden, the case is heard by Stockholm District Court.
There are two different ways to bring a divorce case to the district court. If both spouses wish to be divorced, they may file a joint petition for divorce. However, if only one of them wishes to obtain a divorce, the spouse that wishes to be divorced must submit a summons application to the district court. In both cases copies of birth certificates for both spouses must be enclosed. These can be requested from the Tax Office at the place where a person is registered. Copies of birth certificates may not be more than three months old.
What has to be done in order to have a decree for divorce/legal separation/marriage annulment made in another Member State recognized 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 recognised 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.
To which court must an application be made for a review of a decision to recognise in Sweden a decree for divorce/legal separation/marriage annulment that has been made in another Member State? How are such cases handled?
An application must be made to Svea Court of Appeal in order to utilize the option provided for in the Brussels II regulation to obtain a declaration that the foreign judgment is recognized in Sweden. 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.
The law of which country is applied in divorce proceedings between spouses who are not habitually resident in Sweden or who have different nationalities?
A petition for divorce that is heard by a Swedish court must always be examined on the basis of Swedish law (lex fori principle).
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.
It must be stressed that even in both the abovementioned cases it is merely a matter of applying Swedish law, but with some degree of protection to prevent a decree for divorce being made under Swedish law in cases where the spouses have a weak connection with Sweden and where there are serious grounds against making a decree.