Most legal systems allow spouses, and persons who are about to marry each other, to enter into a prenuptial agreement. That is to say, a legal document in which the spouses agree in advance on how their assets should be divided in the event of a divorce. The Swedish legal system is no exception, and you can find the rules on prenuptial agreements in the Marriage Code (äktenskapsbalken, SFS No 1987:230).
To understand the regulation of prenuptial agreements, a basic understanding of Swedish law regarding the division of property is necessary. Thus, before explaining the regulation on prenuptial agreements you will first get a brief overview of the rules on the division of property under Swedish law.
Division of property in the event of divorce or death
The main rule under Swedish law is that two spouses who divorce must divide their assets between them. The same applies if one of the spouses dies. When a spouse dies the division of property does not, for obvious reasons, take place between the spouses. Instead, the division is done between the surviving spouse and the deceased spouse's heirs and universal legatees.
In a marriage, the spouses' assets are classified into one of the following categories: marital property (giftorättsgods) and private property (enskild egendom). Assets that are marital property are subject to division, while assets that are private property are not. The main rule is that all assets that either spouse owns are marital property. It does not matter which of the spouses owns an asset, or whether they own the asset jointly – if an asset is a marital property, it should be included in the division of property.
In the division of property, the net value of the spouses' marital property is divided equally between the spouses; if there are no grounds for adjustment.
If the spouses do not want an asset to be included in a division of property, they must make the asset private property. The only way for spouses to make assets private property is through a prenuptial agreement. In the prenuptial agreement, they can agree that all, or only some, assets shall be private property and thus be excluded from division.
Formal requirements for prenuptial agreements
A prenuptial agreement can be entered into both before and during the marriage and according to chapter 7 section 3 of the Marriage Code, a prenuptial agreement must meet the following requirements to be valid:
- It must be in writing.
- It must be dated.
- It must be signed by the parties.
- It must be registered in the Marriage Register (Äktenskapsregistret).
The Marriage Register is administered by the Swedish Tax Agency, and registration is done by sending the original prenuptial agreement to the Tax Agency. After registration, the Tax Agency return the original document. The state fee for registering a prenuptial agreement is currently SEK 275.
As you will see later in the text, registration of a prenuptial agreement does not guarantee that the prenuptial agreement is valid.
There is no requirement that a prenuptial agreement must be in the Swedish language, and it is fairly common with prenuptial agreements written in English.
Assets that can be made private property
In principle, all types of assets can be made private property in a prenuptial agreement.
Assets that are often made private property are real estate, condominiums, vacation homes, inherited assets, gifts, companies that one of the spouses operates, pension savings, bank funds, securities, etc.
If the spouses in the prenuptial agreement agree that all assets shall be private property, there are rarely any issues with specifying the assets. It becomes more complicated if the spouses choose to make only some assets private property. This applies primarily to assets such as bank funds, securities, and pension savings, where it is often a complicated task to specify especially future assets correctly.
Common errors in prenuptial agreements
Under Swedish law, there is no requirement that a prenuptial agreement must be drafted or reviewed by a lawyer. It is therefore relatively common for spouses, or future spouses, to write their prenuptial agreement themselves. This unfortunately leads to many prenuptial agreements being incorrectly drafted and therefore wholly or partially invalid.
The Tax Agency may very well register an invalid prenuptial agreement.
When registering a prenuptial agreement, the Tax Agency only checks that the formal requirements are met. That is to say that the agreement is dated and signed by the parties. The Tax Agency does not review the terms in the agreement. This means that the Tax Agency may very well register an invalid prenuptial agreement.
In principle, a prenuptial agreement can only contain terms specifying which assets that should be private property respectively marital property, as well as which country's law should apply to the spouses' matrimonial property regime. No other terms are possible to include in a prenuptial agreement.
A prenuptial agreement, which has not been drafted by a family lawyer, often contains provisions that go far beyond this. Examples of errors that regularly recur include:
- Provisions depending on whether the division of property is due to divorce or the death of one of the spouses.
- Time-limited provisions.
- Assets are not correctly specified.
- Change of who is the owner of an asset.
- Provisions on inheritance.
- Sanctions, such as infidelity clauses.
The examples are only a selection of errors that regularly recur in prenuptial agreements that have been drafted without competent legal assistance.
Always hire a lawyer when writing a Swedish prenuptial agreement
One may be led to believe that it is easy to draft a Swedish prenuptial agreement. However, this is not the case. The consequences of an incorrectly drafted prenuptial agreement can be dramatic and lead to no assets being exempt from division. This can result in, for example, inherited real estate, savings, or a private company run by one of the spouses being included in the division.
You should always hire an experienced Swedish family lawyer when writing a prenuptial agreement according to Swedish law. That way you can be confident that the prenuptial agreement is drafted correctly and that the assets you have chosen to exclude will not be included in a future division of property.
