Leading Expat Divorce Lawyer Team
Sweden’s Series of Divorce Questions
Contributors
- Alexandra Lyckman alexandra@insulander-advokat.se
A. General
The legislations governing divorce proceedings is mainly “Äktenskapsbalken” (The Marriage Code). There are regulations in “Föräldrabalken”(The Parental Code) regarding custody matters in connection to divorce proceedings.
B. Divorce Process in Sweden
As long as the Swedish court has jurisdiction, any one of the spouses may apply for a divorce for any reason, without any further requirements.
The grounds for divorce are that one or both spouses want the marriage to be dissolved.
In some cases, for example if only one of the spouses want the marriage to be dissolved, or if spouses have a child under the age of 16, the divorce needs to be preceded by a period for consideration for 6 months.
Other grounds for divorce are if it was a forced marriage, if one of the spouses is under the age of 18, if the spouses are closely related or if one of the spouses is already married to or in a registered partnership with someone else.
An application for divorce is handed in to the eligible court by either one or both spouses. The Court will announce the divorce either immediately or after the 6-month period for consideration. In most cases, the divorce is announced without a main hearing in court.
C. Jurisdiction Requirements in Sweden
- Both spouses live in Sweden;
- Sweden is the last place the spouses lived together and if one of the spouse still lives there;
- One of the spouse lives there and they hand in a joint application;
- The non-applicant spouse lives there;
- The applicant spouse lives there and has lived there for at least a year immediately before the application was made;
- The applicant spouse lives there and has lived there for at least six months immediately before the application was made and is a Swedish citizen; or
- Both spouses are Swedish citizens.
D. Child Issues in Sweden
The overarching principle in these matters is the principle of the best interests of the child. This is stated in chapter 6 section 2a of “Föräldrabalken” (The Parental Code) that the principle of the best interests of the child shall be decisive in all decisions regarding custody, residence and access.
When assessing what is the best interests for the child, special attention should be paid to the risk of the child or anyone in the family being abused or the child being illegally abducted or detained or otherwise harmed and the child’s need for close and good contact with both parents. The child’s age and maturity will also be taken into account by the Court. The Court may also consider the child’s will.
Yes, custody and access are separate matters. Access can be granted whether a parent has custody rights or not. Some issues in relation to the child can only be decided by the parent/parents who has/have custody rights.
After a divorce, the principle rule is that a child’s custody remains joint and a child’s residence is alternated. If a parent wants a change in the custody or residence, they have to make a claim. There is no preference for a child to reside with the mother in Sweden.
After a divorce, the principle rule is that a child’s custody remains joint. This mean that decisions regarding the child are continuously made by both custodians jointly. If the parents are unable to communicate regarding the child and are unable to exercise the custody jointly, that could be a ground for entrusting sole custody to one parent.
Both parents have the obligation to contribute to child maintenance. The parents shall be responsible for the maintenance of the child according to what is reasonable taking into account the child’s needs and the parents’ overall financial ability. The parents shall between themselves bear the costs according to their ability. If the child resides with one of the parents, the other parent shall fulfil his/her maintenance obligation by paying maintenance allowance to the child.
When deciding the amount for child maintenance, the court will base its decision on what is reasonable taking into account the child’s needs and the parents’ overall financial ability. When determining a parent’s maintenance obligation, the Court will take into account the child’s own income, assets, as well as social benefits.
E. Division of Matrimonial Assets in Sweden
- Assets that have been made a private property through a prenuptial agreement, conditional gift or conditional inheritance;
- Clothes;
- Other matters solely for personal use;
- Non-transferable personal rights; and
- Pension rights.
The overarching principle that guides the Swedish Court in the division of matrimonial assets is the principle of equal sharing.
The respective shares of both spouses in the estate will first be calculated. Deductions are then made from their respective marital assets to cover any debts each spouse have. The remaining of the spouses’ marital assets will then be added together. The value thereof must then be shared equally between the spouses.
With regard to special reasons for example if it was a short marriage or if a spouse is bankrupt or if a spouse passes away, the distribution can be made in another way – for example each spouse to keep their respective marital assets.
F. Spousal Maintenance in Sweden
During the marriage, spouses shall contribute to the maintenance needed to meet their common and personal needs, according to their respective abilities. If a spouse’s contribution does not suffice for his/her personal needs or for the payments that he/she otherwise takes care of for the family’s maintenance, the other spouse should contribute the money needed.
If a spouse neglects his/her maintenance obligation or if the spouses are not living together, the court may order the spouse neglecting his/her maintenance obligation to pay a sum of maintenance allowance to the other spouse.
After a divorce, the main rule is that each spouse is responsible for their own maintenance. If a spouse needs support for his or her maintenance during a transitional period, he/she has the right to receive maintenance support from the other spouse as is reasonable in view of the ability of the payee spouse and the circumstances of the payer spouse.
If a spouse has difficulties sustaining him/herself after a long-term marriage has been dissolved or there are other special reasons, he/she is entitled to maintenance allowance by the other spouse for a longer period.
The overarching principle that guides the Court for spousal maintenance is that during the marriage, both spouses are responsible for their maintenance and after the marriage, each spouse is responsible for their respective maintenance.
The Court will take into account the need for maintenance allowance of the payee spouse and the ability of the payer spouse to make such a contribution.
As the main rule is that each spouse is responsible for their own maintenance, one should not expect the spousal maintenance to be much more than subsistence level except in special cases.
If the Court has made a decision regarding spousal maintenance and the person imposed with a maintenance obligation refuses to pay, there is a special authority called “Kronofogdemyndigheten” (The Swedish Enforcement authority) that handles this.
The person who is entitled to maintenance through a court order (or a valid agreement signed by both spouses) may submit an application for enforcement to this authority who will assist by driving in the debt, or in worst case by way of a seizure order.