1 Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
For marriages concluded until 28 January 2019 Swedish national rules apply. In Swedish law, two different regulatory frameworks apply when it comes to determining the law applicable to matrimonial property. The first regulatory framework is contained in Regulation (1931:429), based on the convention between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship. The regulation was revised by an amendment to the convention in 2006 and has been in force since 1 December 2008. The rules are applicable when both spouses are citizens of one of the contracting states at the time of marriage and then establish their habitual residence in one of the states. The couple must also keep both their habitual residence in and citizenship of one of the states (§ 2 a). If the spouses have not agreed otherwise, the law of the contracting state in which the spouses establish their habitual residence after they have entered into the marriage applies. If the couple later in the marriage establishes its habitual residence in another of the states, the law of that state takes over after the spouses have lived there for at least two years. If both spouses are related to the new country of habitual residence by nationality or by the fact that they earlier during their marriage had their habitual residence there, the law changes immediately at the change of habitual residence (§ 3 a). The second regulation is contained in Act (1990:272) on international issues relating to the property of spouses and cohabitees. According to § 4, unless otherwise agreed, the law of the state in which the spouses establish their habitual residence after they have entered into the marriage applies to their matrimonial property. If they later establish their habitual residence in another state and live there for at least two years that state's law applies instead. Should the spouses establish their habitual residence in a state of which both have nationality or in which they have formerly already had their habitual residence during the marriage, however, that state's law applies as soon as they have established their habitual residence there. If the spouses cannot be deemed to have a habitual residence in the same state at all, the law of the state to which the spouses are most closely connected shall apply. This assessment is made by weighing up the circumstances in each case. The regulations of the Act (1990:272) are applicable in cases not covered by the convention-based Inter-Nordic framework. According to the two sets of legislation only one state law can apply at all times. A change of applicable law thus applies retroactively.
Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules apply to determine the law applicable to all marriages concluded as from 29 January 2019 and to marriages concluded before the date of entry into force where the spouses have chosen a law applicable to their matrimonial regime as from 29 January 2019. By way of exception and according to article 62 of the EU Regulation, specific conventions between Denmark, Finland, Iceland, Norway and Sweden continue to be applicable between all their parties.
For the other cases, in the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.
• The spouses’ first common habitual residence after the conclusion of the marriage.
• Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
• Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.
By way of exception and provided that one of the spouses so requests, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the conclusion of the marriage shall apply (Art. 22.3).
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?
Until 28 January 2019, the main rule according to the Inter-Nordic framework is party autonomy. According to § 3, spouses may agree on the application of a) the law of a contracting state where one of them had his/her habitual residence or of which he/she was a citizen when the contract was made, or b) the law of the contracting state where both spouses had their last habitual residence at the same time during the marriage. Party autonomy also applies as a norm according to the generally applicable rules of the Act (1990:272). The couple may choose as the applicable law the law of whichever state one of them had a habitual residence in or was a citizen of at the time the contract was concluded (§ 3). The spouses' agreement on the applicable law is, under Swedish law, formally valid when it has been concluded in writing and signed by both spouses, which means that a choice of law agreement need not be registered with the authorities, witnessed or drawn up for the purpose in a particularly designed form. Through the choice of law agreement the spouses identify the applicable law which will determine all substantive issues relating to their property relations in the marriage. The spouses' choice of law agreement has retroactive effects.
Regulation (EU) 2016/1103 provides for the possibility to choose the law of one of the States of which at least one of the spouses is a national or the law of the habitual residence of either spouse at the time of the choice as the law applicable to their matrimonial property regime (Art. 22). This choice may only be validly made as from 29 January 2019 within the framework of a marriage contract or an agreement on the choice of applicable law and in compliance with the formal requirements laid down in Article 23.
Finally, the choice of law applicable to the matrimonial property regime during the marriage will only have effect for the future, unless otherwise agreed by the spouses and without prejudice to the rights of third parties.
By way of exception and according to article 62 of the EU Regulation, specific conventions between Denmark, Finland, Iceland, Norway and Sweden continue to be applicable between all their parties.
