Marrying a Swede? Or Swedish and Getting Married? Don’t You Need a Prenuptial Agreement?

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.

Jamaica – U.S. Child Abduction Update

Jeremy D. Morley

Although Jamaica has adopted the Hague Abduction Convention, its accession has not yet been accepted by the United States, United Kingdom or Canada. Accordingly, the Convention is not in force between Jamaica and these countries. 

The Child Protection and Family Services Agency has complained that the failure of these key countries to accept Jamaica’s accession limits how much the agency can do to rectify cases where children have been abducted and taken to foreign countries by a parent.

Speaking to Jamaica’s Gleaner newspaper, the agency’s legal office, Nicole Chambers, said the agency has at least 15 child abduction cases so far, but pointed out that this represents only a small fraction of them. She said that it was frustrating to "to explain to persons that we have domestic legislation in place, we have the court in place, we have a designated Hague-approved judge, but you cannot make your application under the convention because the country where your child is, that country has not accepted Jamaica yet for us to make that application."

I have previously explained some of the specific issues that result from Jamaica’s state bringing the Convention into domestic law. These are:

·         The legislation empowers Jamaica’s Central Authority to refuse an application whenever it decides that the application is not well founded. 

·         The legislation does not state how cases are to be brought to court and does not explain the jurisdiction of the Court if the Central Authority has determined that an application is not well founded.

·         The legislation subordinates the Convention to broad provisions in Jamaica’s Constitution, thereby authorizing or requiring a refusal to return abducted children for far more extensive reasons than are permitted by the Convention.

UCCJEA: FAILURE TO TIMELY OPPOSE REGISTRATION OF FOREIGN CUSTODY ORDER PRECLUDES SUBSEQUENT JURISDICTIONAL CLAIMS

Jeremy D. Morley

A New York appellate court has ruled that a father could not register a California custody order in New York when he had previously failed to oppose the mother’s effective registration of an Israeli custody order which had modified the California order. Matter of Worsoff v. Worsoff, 161 A.D. 3d 879, 75 N.Y.S.2d 525 (N.Y. App. Div. 2018).

The parties lived in California with their children. In 2014 a California court awarded custody to the mother with visitation to the father. The mother then moved to Israel with the children, after which the California court modified its prior order and granted sole custody to the father.

The mother opened a custody case in Israel and the Israeli court, on father’s default, issued an order granting sole custody to the mother, who then relocated with the children to New York. The mother then filed an application to register the Israeli order in the Family Court of Nassau County, whose Clerk served the requisite 20-day notice on the father.

The father did not take advantage of his statutory UCCJEA right to contest the validity of the registration by requesting a hearing within twenty days after service of the notice, and the Clerk of the Family Court certified the registration of the Israeli order. A few weeks later, the father petitioned the same court to register and enforce the California order, claiming that the Israeli court had had no modification jurisdiction under the UCCJEA. “Too late,” said the Family Court. On appeal, the Appellate Division ruled that the father’s failure to seek a hearing within the statutory twenty-day period precluded him from subsequently contesting the registration of the Israeli order. Confirmation of the registration “precludes further contest of the order with respect to any matter that could have been asserted at the time of registration” and meant that the Family Court had necessarily and correctly concluded that the California order had been effectively modified by the Israeli order.

The Lesson: Pursuant to the UCCJEA, if the registration of a foreign custody order is confirmed after the opposing party has failed to request a hearing within twenty days of service of the required statutory notice, that party cannot subsequently assert that the foreign order was issued by a court that had no jurisdiction to do so.

Switzerland: Child Custody

A very helpful introduction to Swiss Child Custody Law is provided by the Association of Counselling Agencies for Binational and Intercultural Couples and Families, Switzerland, as follows:

 

It is important to a child’s harmonious development that he or she be able, as far as possible, to maintain a close relationship with both parents. As of July 1, 2014, separated or divorced parents as a rule will share (in the case of separated parents, continue to share) custody for children they have together. There are exceptions in cases where joint care would conflict with the child’s welfare. Priority is given to children’s welfare. And a child has the right to an independent relationship to each parent, but that is not all. A child also has the right to stable and dependable conditions of care and the right to financial security.

Joint custody also applies for unmarried couples. For this, a joint statement is required; this is most easily provided at the same time as acknowledgment of paternity at the civil registry office. The joint statement can also be provided at a later time at the Child and Adult Protection Authority (KESB, Kindes- und Erwachsenenschutzbehörde, formerly Vormundschaftsbehörde, Guardianship Authority). Without a joint statement, the mother continues to have sole parental custody. If the mother refuses to provide a joint care statement, the affected father may call the KESB in the child’s place of residence. If there is no rationale against joint care, the KESB will issue an order in that regard. The application must be done latest one year after the new law enters into force (application before July 1, 2015).

As of July 1, 2014, divorced parents who do not have joint care pursuant to the new law may contact the KESB in the child’s place of residence and apply for joint care. If only one divorced parent submits the application, there is a deadline of one year after the new law enters into force (application before July 1, 2015) and the divorce ruling may not have been more than five years before the law enters into force (divorces after July 1, 2009). 

Joint parental care means:

• The parents decide together (as previously in a marital relationship), e.g. about names, general childrearing, education, medical matters, religion, other matters that set the course for or significantly influence the child’s life, the child’s income and property, etc.
• New: The parent who is caring for the child may make decisions alone if:  1. the matter is a routine or urgent one, e.g..: food, clothing, recreational activities, contact with friends, etc or 2. the other parent cannot be reached with a reasonable amount of effort.

• New: The concepts of caregiving and custodial care are not spelled out in the law. The concept of actual custodial care: The parent with whom the child lives most of the time. The concept of caregiving goes further: A parent who does not provide official custodial care is giving care when the child is with him or her within the scope of the law governing visits.

• New: Parental care includes the right to determine the child’s domicile. In the case of joint parental care, either the other parent’s approval or a decision by the court or the KESB is necessary in order to change the child’s domicile if: 1. the new domicile is in another country or 2. the change of domicile has significant effects on the other parent’s ability to provide parental care and maintain personal contact. Requirement for consent only in the case of significant effects, i.e., if the move results in significant restriction of visiting rights. Legal consequences in the case of violation and of a move to another country: Repatriation proceedings due to international child abduction.

Responsibilities in the case of disputes:

For divorced parents, the KESB in the child’s place of residence is responsible. If a divorce judgment must be changed (custodial care, custody, child support), the court is responsible.

For unmarried parents, the KESB in the child’s place of residence is responsible. The court is responsible for new regulations concerning child support.

If the parents repeatedly cannot agree about important questions in the child’s life, such that the child’s welfare is seriously jeopardized, the question arises of whether parental care should be taken away from (both or just one of) them. Legal questions related to child support and caregiving are not addressed by the new law. Legal questions related to child support and caregiving should, like parental care, be arranged in such a way that no disadvantages to the child arise from the parents’ marital status.

Recognition of paternity

In the case of married couples, the mother's husband is considered to be the child's father. Paternity needs to be regulated for children of unmarried parents (ZGB art. 260). In addition, a maintenance contract (ZGB art. 279 ff) needs to be concluded and - if the parents do not live together - visiting rights need to be regulated. Parents can do this of their own accord, i.e. they inform the responsible registry office of the paternity. Otherwise, the guardianship authority will establish a declaration of legal support in the interest of the child with the aim of regulating paternity and maintenance (ZGB art. 309). The interests and rights of the child are the main objective here. If a mother keeps the paternity a secret and/or forgoes maintenance, this damages the interests of the child. Keeping paternity secret and/or renouncing maintenance by a mother may be detrimental to the child's interests.

United Arab Emirates' Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

The United Arab Emirates does not adhere to any protocols with respect to international parental child abduction. In 2017, the United Arab Emirates demonstrated a pattern of noncompliance. Specifically, the competent authorities in the United Arab Emirates persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 50 percent (two cases involving two children) of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years.

Report of Actions Taken:

Upon release of the 2018 Annual Report, U.S. Embassy Abu Dhabi delivered a demarche to the Emirati government noting that the Department had cited the United Arab Emirates in the 2018 Annual Report for demonstrating a pattern of noncompliance.

Peru's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

The Convention has been in force between the United States and Peru since 2007. In 2017, Peru demonstrated a pattern of noncompliance. Specifically, Peru’s judicial branch regularly failed to implement and comply with the provisions of the Convention. As a result of this failure, 36 percent (four cases involving five children) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for 23 months. Peru has been cited as noncompliant since 2014.

Report of Actions Taken:

In October 2017, the Department sponsored an International Visitor Leadership Program (IVLP) that brought Peruvian officials to the United States to discuss the Convention with U.S. officials and judges, and to learn about how Convention cases are handled in the United States. IVLP participants included Peruvian judges and officials from the Peruvian Central Authority.

In August 2017, and again in June 2018, U.S. Embassy Lima delivered demarches notifying the Peruvian Ministry for Women and Vulnerable Populations about Convention abduction cases that have been pending with Peruvian courts for more than one year.

In June 2018, the Department delivered a demarche to the Peruvian Ministry of Foreign Affairs stating that the Department cited Peru in the 2018 Annual Report for demonstrating a pattern of noncompliance.

The Department has frequently raised concerns about the Peruvian judiciary’s failure to meet its Convention obligations in both public and private fora. Additionally, to improve communication between the U.S. and Peruvian Central Authorities, the Department conducts bi-monthly conference calls with the Peruvian Central Authority.

Morocco's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

The Convention has been in force between the United States and Morocco since 2012. In 2017, Morocco demonstrated a pattern of noncompliance. Specifically, the Moroccan Central Authority and law enforcement authorities in Morocco failed to take appropriate steps to locate a child in one case for more than one year after a Convention application was filed.

Report of Actions Taken:

In September 2017, U.S. Consulate General Casablanca built upon the prior spring’s visit by the Office of Children’s Issues to urge officials in the Moroccan Central Authority (MCA) to improve central authority functioning with regard to locating children and to communicating with the U.S. government. U.S. officials discussed the Act, including citations, to stress the importance of improving collaboration with the United States under the Convention.

The U.S. Consul General in Casablanca met with the Director of the MCA at the Ministry of Justice in December 2017 on the continued inaction by the Government of Morocco. In April 2018, the Assistant Secretary for Consular Affairs traveled to Rabat to meet with senior Moroccan officials. During this meeting, the officials agreed to exhaust all resources available to the Moroccan government to locate children and improve communication with the United States.

Upon release of the 2018 Annual Report, U.S. Consulate General Casablanca delivered a demarche to the Moroccan government noting that the Department had cited Morocco in the Annual Report for demonstrating a pattern of noncompliance.

Jordan's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

Jordan is not a party to the Convention and does not adhere to any protocols with respect to international parental child abduction. In 2006, the United States and Jordan signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. In 2017, Jordan demonstrated a pattern of noncompliance. Specifically, Jordanian authorities persistently failed to work with the Department to resolve abduction cases. As a result, 50 percent (two cases involving two children) of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for one year and 11 months.

Report of Actions Taken:

In September 2017, officials from U.S. Embassy Amman met with the Jordanian Acting Director of Consular Affairs. The embassy reiterated the Department’s request for appropriate assistance to parents seeking resolutions to the abduction of their children. The embassy delivered a diplomatic note requesting resources available to parents seeking the return of their children from Jordan.

In April 2018, an official from the Office of Children’s Issues traveled to Amman to meet with the Government of Jordan. During the meeting, attended by representatives from the Jordanian Ministries of Foreign Affairs, Interior, and Justice, Jordanian officials provided responses to questions posed by the Department via diplomatic notes and demarches. Further, they offered to provide free mediation services to parents of abducted children in order to assist in the resolution of abductions. U.S. Embassy Amman is following up with the Ministry of Foreign Affairs to confirm the process by which a parent could request this service from the Government of Jordan.

Upon release of the 2018 Annual Report, U.S. Embassy Amman delivered a demarche to the Jordanian government in June 2018 noting that the Department had cited Jordan in the Annual Report for demonstrating a pattern of noncompliance.

Japan's Noncompliance - International Child Abduction - U.S. July 2018 Report

Country Summary: 

The Convention has been in force between the United States and Japan since 2014. Since then Japan has made measurable progress preventing and resolving cases of international parental child abduction. The number of abductions to Japan reported to the Department has decreased since the Convention came into force for Japan. Despite this progress, in cases where taking parents refused to comply with court return orders, there were no effective means to enforce the order, resulting in a pattern of noncompliance. As a result of this failure, 22 percent (two cases involving five children) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for one year and 10 months. The Department continues to urge Japan to resolve the 21 pre-Convention abduction cases that remained open at the end of the year, all of which have been outstanding for many years.

 Report of Actions Taken:

In July 2017, senior Department officials delivered a demarche to the Japanese Ambassador requesting that Japan enforce Convention return orders and resolve all pre-Convention IPCA cases.

In November 2017, senior Department officials delivered a demarche to the Embassy of Japan’s Political Minister, expressing their concern that Japan was not upholding its Convention obligations in failing to enforce Japanese court return orders. In September, October, and November, a U.S. Embassy Tokyo senior official met with senior Japanese Foreign Ministry officials to express those same concerns.

In December 2017, the U.S. Ambassador to Japan delivered a demarche with the same points to Japan’s Deputy Chief Cabinet Secretary. Also in December, the Special Advisor for Children’s Issues met in Tokyo with Japanese government officials to encourage Japan to create measures for enforcing Convention return cases and resolve pre-Convention abduction cases.

In January 2018, U.S. Embassy Tokyo high-level officials met with relevant Japanese authorities, highlighting U.S. concerns regarding enforcement of Convention court orders, and the importance of cross-ministry collaboration to solve the problem.

In February 2018, the Special Advisor for Children’s Issues met with the Japan Central Authority Director in Washington, D.C., to raise concerns on enforcement and to review all pre-Convention cases.

In April 2018, high-level officials from the Department and the U.S. Embassy in Tokyo met in Tokyo with Japan’s Consular Affairs Director General, reiterating concerns regarding enforcement and the need for a whole-of-government approach to fix it.

Following the release of the 2018 Annual Report, U.S. Embassy Tokyo delivered a demarche to Japanese authorities stating that the Department had cited Japan in the 2018 Annual Report for demonstrating a pattern of noncompliance because of the persistent failure to enforce judicial decisions. The U.S. embassy urged the Government of Japan to review and address the impediments that result in enforcement failures, and provide the Department with an update on the actions it intends to take in order to promptly enforce Convention return orders and the timetable for such reforms.

The embassy further requested Japan’s assistance in specific Convention and preConvention cases. The Department is considering the use of further tools under the Act if Japan continues its pattern of noncompliance in failing to promptly enforce Convention court orders.

India's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

India is not a party to the Convention and does not adhere to any protocols with respect to international parental child abduction. In 2017, India demonstrated a pattern of noncompliance. Specifically, the competent authorities in India persistently failed to work with the Department to resolve abduction cases. As a result of this failure, 90 percent (44 cases involving 50 children) of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for one year and ten months. India has been cited as noncompliant since 2014.

Report of Actions Taken: 

Throughout the year, officials at the highest levels of the Department engaged with the Government of India on the issue of international parental child abduction. Several senior Department officials pressed India to assist with resolving abduction cases and to accede to the Convention.

In January 2018, U.S. Embassy New Delhi and the Department hosted a digital video conference between a U.S. Hague Network Judge and an Indian committee reviewing draft legislation to address IPCA. The discussion addressed common concerns and misconceptions about IPCA and the Convention.

In February 2018, the Special Advisor for Children’s Issues traveled to India to meet with government officials, legal experts, and members of India’s civil society to address common concerns regarding IPCA and the Convention. The Special Advisor pressed the Indian government to assist with resolving abductions and to accede to the Convention.

Upon release of the 2018 Annual Report, U.S. Embassy New Delhi delivered a demarche notifying the Indian government that the Department had cited India in the 2018 Annual Report as demonstrating a pattern of noncompliance and once again requested India’s assistance with resolving reported cases.

Ecuador's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

The Convention has been in force between the United States and Ecuador since 1992. In 2017, Ecuador demonstrated a pattern of noncompliance. Specifically, Ecuador’s judicial branch and law enforcement authorities regularly failed to implement and comply with the provisions of the Convention. As a result of this failure, 13 percent (one case involving one child) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. More specifically, this case has been unresolved for four years and 11 months. Ecuador has been cited for noncompliance since 2015. The Ecuadorian Central Authority moved from the Ministry of Economic and Social Inclusion to the Ministry of Justice in June 2017, and a new director was appointed in mid-November 2017.

Report of Actions Taken: 

The Department has reinforced efforts urging Ecuador to improve its Convention implementation. In January 2018, the USCA increased the frequency of digital video conferences with the Ecuadorian Central Authority, Ecuadorian law enforcement officials, and the Public Defender’s Office to monthly meetings. During these conferences, participants discussed case updates and strategies on improving implementation of the Convention in Ecuador. Such conferences also increased understanding among the different offices involved in abduction cases in Ecuador and therefore improved communication, coordination, and cooperation.

The Department also plans to invite Ecuadorian officials to participate in a new International Visitor Leadership Program (IVLP) tentatively scheduled for summer 2018. The IVLP will specifically address the judicial components of processing and resolving Convention abduction cases.

In June 2018, U.S. Embassy Quito delivered a demarche to the Ecuadorian Ministry of Foreign Relations, giving official notice that the Department cited Ecuador for demonstrating a pattern of noncompliance.

Dominican Republic's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

The Convention has been in force between the United States and the Dominican Republic since 2007. In 2017, the Dominican Republic demonstrated a pattern of noncompliance. Specifically, the judicial authorities in the Dominican Republic persistently failed to implement and abide by the provisions of the Convention. As a result of this failure, 20 percent (one case involving one child) of requests for the return of abducted children under the Convention have remained unresolved for more than 12 months. On average, these cases have been unresolved for 16 months. The Dominican Republic has been cited as noncompliant since 2014.

Report of Actions Taken: 

The United States regularly presses the Dominican Republic directly to improve its performance. In 2017, the USCA nominated the Director of the Dominican Central Authority (DCA) for the International Visitor Leadership Program. In April 2018, an official from the Office of Children’s Issues traveled to the Dominican Republic, met with the DCA and discussed ways to improve communication. During this meeting, the DCA and USCA agreed on a method for improving the overall quality and frequency of communication between our Central Authorities.

In June 2018, the Consul General at U.S. Embassy Santo Domingo delivered a demarche to the Dominican Ministry of Foreign Relations, giving official notice that the Department cited the Dominican Republic for demonstrating a pattern of noncompliance. The demarche also highlighted the lack of progress on long-standing cases, and requested an update on a case pending with the Dominican Supreme Court.

The embassy delivered both messages to the DCA and the Dominican Attorney General’s Office.