Jeremy
D. Morley
www.international-divorce.com
Why do we recommend that a party with assets who is
entering into an international marriage with a Swedish citizen or resident
should always consider entering into an international prenuptial agreement?
Because the law of Sweden concerning the division of assets upon a divorce is
unusual and can be devastatingly unfair to unprotected spouses who have
significant premarital assets.
Fundamentally, without a prenuptial agreement,
everything that each spouse owns, in whatever form and wherever it is located,
is normally treated as marital property, at least as of the time a divorce case
is commenced. There is normally no limit
on the length of time the assets were owned before the marriage; no
consideration to whether the assets were inherited from family members; and no
consideration to the steps taken by the owning spouse to acquire the assets.
Technically, the Swedish system is that of a deferred
community property regime. This means that, upon marriage, each spouse
continues to own and administer all of his or her property throughout the
marriage, but that each of the spouse has a special claim, called a “right in
deferred community property,” to the assets of the other spouse. It is an
implied right to one-half of the value of both spouses’ marital property
(including premarital assets), after deduction for debts. This means that when
the regime is dissolved upon a divorce, the value of the marital property is to
be shared equally between the spouses.
Accordingly, upon a divorce the assets will normally
be divided equally between the spouses, without regard to the length of the
marriage, the nature of the relationship, the contribution of either party to
the source or the growth of the assets, or any other factors of fairness. If
the parties are unable to agree on the details of the asset division, the
determination is made by a Property Division Executor, who is usually a lawyer.
The spouse with the most marital property may choose
whether the difference shall be equalized by a lump sum payment or by means of a
transfer of assets of equivalent value.
The economically disadvantaged spouse may normally take
over the joint home and the household goods, provided the other party is
provided with compensation.
A spouse who is dissatisfied with the Executor’s decisions
may appeal to the District Court, and that court has certain powers to take
considerations of fairness into account.
As I have so frequently recommended, it is always
prudent for international couples who plan to marry to consider making an international
prenuptial agreement. And the benefits of prenuptial agreements are generally
multiplied when the parties are from different countries or have assets
overseas or are living overseas.
But all of that applies very much more so whenever
there is a possibility that the future spouses might end up divorcing under
Swedish law.
In order to avoid the harsh results of Swedish family law,
many Swedish couples choose to remain unmarried. For those who do marry,
prenuptial agreements are extremely common.
Prenuptial agreements are generally enforced in
Sweden. There is no requirement as to form or legal representation except that
they must be in writing. They must be registered at a district court which then
procures registration in a national register. Swedish courts have the power to
make an award in derogation of the prenuptial agreement in order to avoid
unreasonableness but if the spouses entered into the contract with full
knowledge of what they were doing that power is quite limited.
Spouses may include a provision choosing the law of the country that is to
govern their property relations, provided they choose the law of a country in
which at least one of them was domiciled or a citizen at the time of the
contract. Act of 1990 on International Questions concerning Property Relations
between Spouses, sec. 272, para. 3 (1990) (Swed.).
Absent such a choice of law, the prenuptial agreement is governed by the law of
the state in which the spouses established their domicile at the time of their
marriage. Act of 1990 on International Questions concerning Property Relations
between Spouses, sec. 272, para. 4(1) (1990) (Swed.).
Foreign prenuptial agreements will be enforced in Sweden if entered into in
compliance with the law that governed the spouses' property relations at the
time of the agreement. Act of 1990 on International Questions concerning
Property Relations between Spouses, sec. 272, para. 5 (1990) (Swed.).
The Law Office of Jeremy D. Morley handles
international prenuptial agreements globally, always working with local counsel
as appropriate. We work closely with counsel in Sweden on prenuptial agreements
for couples who are concerned that their divorce case might possible end up in
Sweden. We commence all such matters with a consultation, usually by telephone.
We consult on these matters with clients throughout the world. Contact us at
info@international-divorce.com.