Abstract
In the Swedish conflict of laws “the personal law” (personalstatutet) is said to be the lex patriae of the propositus. This statement is generally qualified by an explanation that matters relating to personal status are to be settled by the application of the law of the country to which the propositus “belongs” as a citizen. However, it must be recalled that any discussion concerning the personal law must separate two distinctly different questions. One question concerns the scope of the personal law: which matters are to be settled by the application of the personal law? The other question concerns the choice of the personal law: within a given legal order, which law is the personal law.1
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In contemporary law no conformity exists as to the scope of the personal law and therefore the usefulness of the whole concept may be questioned. In any case, the legislator should not, as so often the text-book writer finds necessary to do, set out first to define the personal law and then to delimit its scope. His job is to study which law is the most suitable to apply in a series of questions relating to divorce, guardianship, inheritance, alimony, adoption, etc. He may suggest that concerning some relationships the lex patriae should apply and in others the lex domicilii, and there are, of course, other possible connecting factors to consider as well as combinations of various kinds. What is important to remember, however, is that from the point of view of legal policy it might be reasonable to claim “that uniform regulation of matters of status is justified, at least with respect to the basic facts of personal life” (Rabel, The Conflict of Laws, I, p. 117).
Concerning the Nordic conventions see above pp. 34 ff. and below p. 236.
1948 N.J.A. 805.
1949 N.J.A. 82.
1951 N.J.A. C 733; 1955 N.J.A., 571; 1956 N.J.A. 601.
See Eek, Scandinavian Studies in Law, 1959 pp. 23 ff. Cp., further, pp. 248 f. below.
1956 N.J.A. 337.
Swedish internal law does not make any distinction between “domicile” and “residence.” Legal texts use the term hemvist, which refers to the place (or home) where a person permanently lives, In Swedish conflict of laws (statutory texts, cases and legal writing) the term hemvist is likewise used, although the term domicile may be found here and there in Swedish legal writing. It is sometimes assumed that the presence of hemvist or residence in Sweden in the municipal-law sense does not necessarily involve domicile, which would require, in addition, an intention to remain in Sweden. On the other hand, hemvist in itself imports a quality of permanence, distinguishing it from mere sojourn or stay. The question of the meaning or, rather, the employment of the various terms is not important for the discussion in this resume, where the terms “residence” and “domicile” are used alternatively and merely denote the fact that a person is living permanently in Sweden. Cf. above p. 129 f.
Guldberg & Bergendal, Kommentar till ärvdabalken, II., Stockholm 1962, p. 333; Michaeli in Sv.J.T. 1946, pp. 456 ff.
Vide Rosén in Sv.J.T. 1959, pp.43 ff.
Cf. Eek in Sv.J.T. 1962, pp. 751 ff.
Cf. below pp. 248 concerning the case where one of the spouses in the first marriage dissolved abroad by a decree not recognizable in Sweden, has married anew.
The Act of 1904 ch. 1, sec. 4, requires that a Swede who wants to marry abroad shall observe the Swedish rules concerning publication of bans. This does not mean, however, that the non-observance of these rules invalidates a marriage abroad if the formal requirements of the lex loci celebrationis were followed. The Swedish law on this point seems to have been misunderstod by Rabel, op. cit., pp. 234 and 245. Domestic formalities are not exclusive.
The following decision of the Supreme Court of Administrative Justice should be noted (1954 R.Å.ref. No. 33). An Italian, R, living in Sweden and married to an Italian wife, was divorced from this wife by a decision of a court in Bravos, Chihuahua in Mexico. The following day R and a Swedish woman, C, unmarried and living in Sweden, were married by proxy in Juarez in Chihuahua in accordance with the formalities required by Mexican law. Thereafter C requested the vicar of the parish in Stockholm where she lived to record her marriage to R. The vicar refused and his decision was upheld by the Chapter of the Diocese of Stockholm. The Supreme Administrative Court of Justice decided to refer the matter back to the vicar who, therefore, became obliged to record R and C as married. The Court said that the question whether the marriage should be regarded as void because R and C at the time of the marriage ceremony had been in Sweden and had been represented by proxy, in spite of the fact that the formal requirements of Mexican law had been followed, had not been raised by anybody whose rights were involved and that such a question could not be resolved by administrative procedure.—In other words, the marriage was performed in accordance with the formalities required by Mexican law and was therefore to be regarded as valid in Sweden. It should be noted that in an ordinary court of law a person whose rights were involved, e.g. R’s Italian wife, could have brought an aotion aiming at establishing the continued validity of R’s first marriage or at annulment of the second marriage. The public prosecutor might also initiate proceedings to that effect. But until the marriage hade been nullified in one way or another by a court decision, it remained valid.
Of. Undén, pp. 30 ff. A handbook prepared for the Swedish clergymen by the Ministry for Foreign Affairs includes a statement that in some countries common law-marriages may come into being solo consensu. The handbook adds: “If two Swedes in such a country after an agreement live together as husband and wife, they are also according to Swedish law to be regarded as legally married.”
In a case (1946 N.J.A. 479) concerning refugees who had not acquired domicile in Sweden, jurisdiction was assumed due to the circumstances under which the spouses lived in Sweden. The absence of a rule in the Act forbidding jurisdiction made it possible to follow the demands of reasonableness and, perhaps also of the Law of Nations; no other court in the world than a Swedish court was available to the parties.
Austria-Hungary, Belgium, Denmark, France, Germany, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Rumania, Russia, Switzerland, Spain, United Kingdom.
This seems to be the opinion of Undén, pp. 55 f.
As will be seen below the national test is difficult to apply in other matters also. It would seem to be reasonable only if it became an international test, that is if universal rules concerning jurisdiction and choice of law existed. The test, then, would exclude from recognition decisions which deviated from the universally applied principles. The scope of recognition of foreign decisions concerning personal status could very well be widened. Recognition does not create a new and complicated situation, as this is the result already achieved by the foreign decision which must take effect at least within one territory. On the other hand, it seems a good legislative policy to restrict the assertion of jurisdiction in matters relating to status which are connected with foreign countries. Cf. Eek in Sv.J.T. 1957, pp. 536 f.
It must be mentioned, however, that in Sweden the spouses may jointly apply for separation when because of profound and lasting disruption they consider themselves unable to continue cohabitation. This situation is not foreseen in the Act of 1904. According to the Marriage Code ch. 15, sec. 4 in fine, the proper forum for a joint application for separation is the court of the domicile of both parties or any of them or the court of the place where the spouses had their last common domicile. By analogy it seems reasonable to conclude that a Swedish court would entertain jurisdiction with respect to a joint application for separation of spouses who are foreign citizens whenever any of them is domiciled in Sweden and also when the spouses had their last common domicile in Sweden.
It should, however, be recalled that the rules in ch. 3. secs. 5 to 7 inclusive of the 1904 Act concerning recognition of foreign decrees on divorce or separation apply also to Swedish citizens.
Cf. 1908 N.J.A. 190.
1956 N.J.A. 601.
Cf. 1929 N.J.A. 1 (before the amendment) and 1952 N.J.A. 471 (after the amendment).
1927 N.J.A. 130; 1956 N.J.A. 337. Cp. 1956 Sv.J.T. 65. A request for confirmation of a foreign divorce was rejected as not necessary in a case where a German court had granted a divorce of a marriage where the husband was German and the wife probably Swedish. The wife would in any case be regarded as German under the transformation rule.
1956 Sv.J.T, 65 — It should be noted that according to the 1964 statute mentioned below (p. 248) the Stockholm Court of Apeal has the authority to issue a confirmation of a foreign decree on divorce or separation when the foreign authority has entertained jurisdiction on the basis of rules corresponding to those contained in ch. 7:2:2 of the Act of 1904. Such decisions will, however, have no effect at all in Sweden until confirmation has been granted.
Cf. Rabel. I, p. 517.
Cf. Undén, pp. 93 and 56. Cf. also 1947 N.J.A. 346, discussed by Philip in Recueil, p. 533.
Undén p. 92.
Cf. however, 1958, Sv.J.T. 27. See Eek in Scandinavian Studies in Law, 1959, p. 47.
1915 N.J.A. 391; 1930 N.J.A. 692; 1931 N.J.A. 495.
See 1934 N.J.A. 77. Cf. 1927 N.J.A., 130; 1930 N.J.A., 692.
1915 N.J.A. 391; 1931 N.J.A. 495; 1937 N.J.A. 438. Cf. also 1931 N.J.A. 403 and the two cases 1929 N.J.A. 1 and 1929 N.J.A. 532 concerning the same marriage. The three cases, however, are not clear with respect to either law or facts.
Cf. Karlgren, p. 124; Undén, pp. 110 f.
In 1931 N.J.A. 403 the defendant spouse was a Swedish citizen but it was doubtful whether he could be regarded as domiciled in Sweden. The other spouse (the wife) had been a Swedish citizen and was either a British subject or stateless and was domiciled in South Africa. Cf. 1929 N.J.A. 532, and 1929 N.J.A. 1.
1934 NJ.A. 77.
1927 NJ.A. 130 concerned support during separation. Both spouses were Hungarian citizens. The wife lived in Hungary and the man, the defendant spouse, lived in Stockholm but was not registered as a resident of Sweden.
1930 NJ.A. 692; 1950 NJ.A. 464. 1936 Sv.J.T. 27 Jurisdiction was accepted in a case concerning support. Both spouses were German citizens, the wife was living in Germany and the man in Helsinki. The court made itself available as the defendant spouse (the man) from time to time visited Sweden where he was carrying on business; he had also received summons in Sweden.
The case also concerned an increase of the amount of support due to raised living-costs in Hungary.
1953 N.J.A. 4 (above p. 71) and 1962 N.J.A. 123 (above p. 72).
See the preceding footnote and also 1957 N.J.A. 135 (above p. 218 ff.)
1964 N.J.A. 1. See Dennemark in Festskrift tillägnad Hjalmar Karlgren, pp. 49 ff.
This fact may explain the attitude taken by Swedish authorities in the Boll Case. See Eek in Festschrift Schätzel, pp. 119 ff.
1952 N.J.A. 471; 1956 N.J.A. 337.
1956 N.J.A. 337. Cf. above pp. 233 f.
1952 N.J.A. 471.
1956 N.J.A. 410.
1957 N.J.A. 430.
It seems that in both cases the Supreme Court neglected reasonable interests of the defendant.
1915 N.J.A. 1.
Beckman, p. 69.
Karlgren, pp. 130 f.
Wallin, op. cit., p. 532.
1946 N.J.A. 310. Cf. the later case 1963 N.J.A. 489.
Cf. above p. 251.
1960 R. Ä.Ju 49.
Ehrenzweig, p. 182.
Karlgren, p. 136. — In the Nordic system the country of the domicile of the adopter entertains jurisdiction in cases concerning adoption and the legal relationship so created is governed by the law of the country where the adopter is domiciled.
According to Walin, op. cit., p. 564, Swedish substantive law applies when the court has to decide whether the requirements for dissolution exist.
Germany, Hungary, Italy, Netherlands, Portugal and Rumania.
It is assumed that the special statute relating to ch. 5 will soon be repealed.
1915 N.J.A. 395.
1915 N.J.A. 321.
The Act includes some protective rules which make a contract relating to property matters valid, if concluded in Sweden by a person under guardianship with a party who did not know, or did not have reason to know, of the lack in capacity. Special rules apply to bills of exchange and checks since Sweden is a party to the 1930 Geneva conventions on negotiable documents.
According to the Act, however, the lex patriae shall always determine the question whether there is a need to appoint a guardian for a minor. For instance, if a person has been supplied with a guardian in country X where people attain majority at the age of 23, but his lex patriae provides for majority at the age of 21, no need for a guardian exists. (A possible question of interdiction must be dealt with separately. ) The consequence seems to be that the person concerned should in Sweden be regarded as having reached majority even if the foreign appointment of a guardian has not been formally repealed. But the matter is not settled.
The general rules apply to Swiss decisions as the convention between Sweden and Switzerland excludes “décisions rendues en matière de tutelle et d’interdiction”
It might be argued that the foreign decision should be recognized in Sweden only if the foreign authority had applied the lex patriae (Swedish law) with respect to the grounds for the appointment of a guardian and interdiction. Cf. Walin op. cit., p. 553. “The national test,” however, strictly applied would speak against such arguments.
Cf. 1933 N.J.A. 514; 1915 N.J.A. 395.
A similar rule applies to Swedish citizens with domicile abroad.
Cf. 1957 N.J.A. 441.
Sec. 2. Cf. 1919 N.J.A. 546.
Cf. 1934 N.J.A. 320.
The question of recognition of judgments in absentia has been left out.
See for instance pp. 108 f. and 128 (“centre of gravity method”); pp. 62 f., 140, 216 f. and 224 f. (choice of law clause).
Cf. Ole Lando, Kontraktstatuttet, København 1962, with an extensive summary in English.
For instance in 1879 N.J A. 185; 1904 N.J.A. 384.
For instance 1911 N.J.A. 467.
1912 N.J.A. 231. Cf. 1930.N.J.A. 507.
1937 N.J.A. 1. Cf. 1937 N.J.A. 17; 1939 N.J.A. 247; 1942 N.J.A. p. 389; 1956 N.J.A. 150.
Cf. Eek in 13 American Journal of Comparative Law (1964), pp. 173 ff.
Nial, p. 19.
Karlgren, p. 95.
Cf. above pp. 216 f.
Cf. however 1941 NJ.A. 350.
Cf. Knoph in T.f.R. 1938, pp. 46 ff.
Cf. 1912 N.J.A. 231.
Cf. 1934 N.J.A. 320.
Cf. 1911 N.J.A. 467.
Special rules refer to conflict problems in the field of maritime law. See for instance Stig Jägerskiöld, Arkiv for Sjørett, Tome 2, 1954 pp. 8 ff.
See further Nial, pp. 46 ff. and 54 f. Cf. also 1928 N.JA. 252; 1930 N.J.A. 507; 1951 N.J.A. 444 and 1952 N.J.A. 41 and 382.
1932 N.J.A., 267; 1933 N.J.A., 364; 1935 N.J.A., 585; 1936 N.J.A., 291.
Karlgren p. 111.
See concerning this problem Strömholm, pp. 144 ff. and Eek in Festskrift til Borum, pp. 127 ff.
Nial, p. 81.
Cf. above pp. 74 f. and 80 f., and 1923 N.JA. 669; 1929 N.J.A. 466.
Nial, pp. 81. Vide also Nial in Recueil. 1960, pp. 265 ff. and Liber amico-rum, pp. 155 ff.
1895 N.J.A. 208; 1931 N.J.A. 172.
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Eek, H. (1965). The Swedish Conflict Rules — A Resumé. In: The Swedish Conflict of Laws. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9552-2_4
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