2 Is there a statutory matrimonial property regime and if so, what does it provide?
2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?
The statutory matrimonial property regime is the deferred community of property system. It is regulated in the Marriage Code (1987:230) (ÄktB). Each spouse owns his/her property, regardless of whether the property was acquired before or during marriage, and each is responsible for his/her own debts to creditors (ÄktB 1:3). At the same time, however, each spouse has a marital right, which gives him/her a claim to half of the marital property’s net value upon dissolution of the marriage. Marital rights thus are not the same as ownership rights. Everything that is not separate property is marital property (ÄktB 7:1). Property can be separate as a result of a marriage contract or because of a condition of a third party, for example stipulated in a will (ÄktB 7:2).
2.2. Are there legal assumptions concerning the attribution of property?
The spouses’ assets are marital property, unless otherwise stipulated.
2.3. Should the spouses establish an inventory of assets? If so, when and how?
When an application for divorce has been filed, to the extent necessary, each spouse's assets and liabilities are recorded as they were when the application was brought. If the marriage is dissolved due to the death of a spouse, a record of assets and liabilities should also be made. If it is necessary to obtain an estate inventory, a division registrar is appointed by the court (ÄktB Chapter 17). It is important to note that under Swedish law there is no record of the property of the spouses at the time the marriage is celebrated.
2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?
Each spouse has the right to dispose freely of his/her property. However, the other spouse's consent can be required for the disposal of the couple's joint home and household goods as well as the disposal of immovable property in general. These restrictions are specified in ÄktB 7:5 and basically mean that a spouse's consent may be required to mortgage, pledge, lease and sell the property, whether it is a spouse's marital property or separate property. The legal consequences of a disposal in violation of the restrictions in ÄktB 7:5 are stated in ÄktB 7:8-9. In brief, it can be said that a legal transaction concluded in violation of the restrictions is invalid and as a rule, the property reverts to its original owner. However, the owner may apply to a general court and request the right to dispose of certain property without the other spouse's consent (ÄktB 7:8). Further, when an application for divorce is brought (the so-called critical time) an accountability obligation is laid on each spouse, regarding how they proceed with the assets and liabilities to be included in the division of property (ÄktB 9:2-3). In order to protect one spouse's right at the division of property, it is possible for the court at the request of a spouse to decide to cut off the other spouse’s right to use certain property (in Swedish: särskild förvaltning) (ÄktB 9:8), until the division of property is completed.
2.5. Are any legal transactions made by one spouse also binding on the other?
Legal transactions concluded by one spouse are not binding on the other spouse. Each spouse owns his/her property and is responsible for his/her own debts. Joint responsibility for debts only arises when both spouses have incurred the debts jointly.
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
The spouses are responsible only for their own debts, whether they are linked to separate property or marital property. A spouse’s property - regardless of its character as marital property or separate property - can be used to satisfy his/her debt, or to satisfy both spouses' debts, provided that they have incurred liability jointly and are therefore jointly and severally responsible for it.
