When a marriage ends in divorce, the spouses must, according to Swedish law, carry out a division of property where the net value of their assets is distributed. However, there is an important exception to this general rule— separate property (. This article will provide an overview of what separate property is, how it is defined in the law, and how assets can be made separate property to keep them out of a division of property.
The Starting Point is that All Property in a Marriage is Marital Property
According to the Swedish Marriage Code (äktenskapsbalken), the starting point in a marriage is that all property owned by the spouses is marital property, unless otherwise agreed. This means that both spouses have a potential right to half of the value of all property, regardless of who is the actual owner. However, this right only comes into effect during a division of property, such as in the event of divorce or when one spouse dies.
Marital property can include real estate, bank accounts, stocks, and other assets acquired by the spouses during the marriage. It is important to note that even assets acquired by one spouse before the marriage can become marital property if they have not explicitly been made separate property.
Spouses are Obliged to Divide Property After a Divorce
When a marriage ends in divorce, the spouses are required by the Marriage Code to carry out a division of property (äktenskapsbalken 9:1). A division of property is a mandatory process where the spouses’ assets are distributed between them. The purpose of the division of property is to fairly distribute the spouses’ assets and debts so that both parties receive an equal share of the total net value of the marital property.
In a Division of Property Due to Divorce, All Property that is Marital Property Must be Included
According to the Marriage Code, all property that constitutes marital property must be included in the division of property (äktenskapsbalken 10:1). This means that the spouses’ combined assets, regardless of who is the formal owner, must be divided equally between them. The total value of the marital property is calculated after deducting the spouses’ debts.
This rule means that assets that one spouse has built up during the marriage, such as savings, investments, and other assets, can be shared between both spouses in the event of a divorce. Even real estate and property acquired before the marriage may be included if they have not specifically been made separate property.
Separate Property is Not Included in the Division of Property
Separate property is excluded from the division of property, meaning it is not shared between the spouses in the event of a divorce. Separate property is defined in the Marriage Code (äktenskapsbalken 7:2) and can include property that:
- A spouse has received as an inheritance or gift with the condition that it should be separate property.
- A spouse has received through a will with the condition that it should be separate property.
- Has been made separate through a prenuptial agreement.
- Property that a spouse has received through a beneficiary designation in a life insurance policy, accident insurance, health insurance, pension savings.
The fact that separate property is not included in the division of property have significant implications for a spouse who wishes to protect certain assets in the event of a divorce. This protection can be particularly important if the assets have a significant value, such as real estate, business ownership, or other substantial assets.
Important to Know Whether Assets are Separate Property or Marital Property
If you are facing a divorce, it is crucial that you understand the difference between separate property and marital property. It is also essential to know which assets fall under which category. Whether an asset is classified as separate property or marital property is decisive for how much you will receive from the divorce settlement.
Unfortunately, it is all too common for one spouse to accept the other spouse’s assertions regarding whether certain assets are separate property or marital property without questioning the accuracy of the claim. For example, a spouse might claim that a certain asset received as a gift is separate property, which, upon simple verification, would prove to be entirely incorrect because the gift deed contained no such provision.
Therefore, do not accept any information from your spouse without first verifying its accuracy. Additionally, do not hesitate to consult with a family lawyer who can guide you through both the divorce and the division of property. By doing so, you can be confident that you will receive what you are entitled to in the divorce.
