sou · GVB317 · 2008-01-01 00:00:00 — Marriage has long been deemed to be a social institution for cohabitation between a man and a woman, and this definition of marriage is deeply rooted in society, both here in and abroad. It also corresponds with the fundamental view of marriage by religious communities as an institution although the perception of religious communities on the specific implications of marriage may differ here. However, a particular perception or definition of a social phenomenon cannot last forever even if it has very deep roots. Social progress advances and new values and opinions might also have to be given scope when it is a matter of fundamental opinions. The view of society on homosexuality is one example of such a shift in opinion and in various areas attempts have been made to eliminate former disfavourable treatment of homosexuals and to counteract discrimination. This has, among other things, been expressed in the basic principles laid down in Chapter 1, Section 2 of the , where it is stated that society should counteract discrimination on the basis of, among other things, sexual orientation. The fact that marriage is not open to couples of the same sex will not, either according to the Constitution or Convention, amount to discrimi- nation as such on the basis of sexual orientation, but it nonetheless implies a kind of special disfavourable treatment. In my opinion, the traditional significance of marriage as a heterosexual relationship cannot determine whether marriage should also be opened up to couples of the same sex. The legislator must be at to define marriage so that it corresponds to prevailing opinion. For the parties themselves to be allowed to decide about whom they wish to marry, without some kinds of couple being excluded from marriage, may also be considered to fall more closely in line with the neutrality expressed by the Marriage Code (ÄktB) as regards the position spouses care to adopt in relation to each other. The term marriage. The reference group, with representatives from religious communities, has objected to the term marriage being used in legislation that applies both to couples of different sex and couples of the same sex. Another legal term should be used instead since for religious communities marriage is an emotive term, which in various ways constitutes an element of their religious beliefs. At the hearings that I have held, the same objection was raised by the Church of and other religious communities. One factor that goes against accommodating religious commu- nities wishes is that, in my opinion, the word marriage has been in regular use for many years and that a change could possibly be perceived in many quarters to be completely unnecessary. More- over, all those who are already married would be put into the situation that their chosen form of cohabitation would suddenly assume a different designation. There are also other reasons for not having a solution that satisfies religious communities. It is, among other things, difficult to find any appropriate synonym that can denote the legal relationship between two spouses. The term marriage (in Swedish äktenskap) in its various linguistic forms is commonly used in most countries for a relationship between two persons sanctioned by the State, from which a number of legal effects ensue in various areas. The usual designation in inter- national conventions in the area of family law is also marriage. To now substitute the established term äktenskap (marriage) with another term in order to designate something that in all essential respects corresponds to marriage may entail a serious risk of the new term possibly being misunderstood in other countries as meaning something other than marriage. Another reason is that the word marriage will also endure even if Swedish legislation changes. The reasons against introducing another designation for the legal term marriage are so strong that I have not considered the use of an alternative term to be a feasible way forward. One objection that has been advanced is that marriage is a social institution in which children should be born and grow up, and that with this point of departure it is important that society protects marriage. Marriage, however, does not only exist for those who have children. The birth of children is not a requirement for marriage and many who cannot or do not wish to have children nonetheless get married. The fact that homosexuals can not have common biological children can therefore be an argument against people of the same sex being able to get married to each other. On the contrary, Court has established in a legal case that the possibility of having common biological children does not constitute a precondition for the right to get married. The perspective of the child. In my opinion, the perspective of the child does not give any real guidance either as regards adopting a position on whether it should be possible for homosexual people to get married to each other. For children it can be assumed that the most important aspect is that their relationship with their parents is good and secure, regardless of the sex of their parents and the legal form of cohabitation chosen by their parents. Also, if the situation should be such, as asserted in the public debate, that marriage provides children with greater security, one must pose the question why children in families where parents are of the same sex should not be regarded as on a par with children of married hetero- sexual parents. Other constellations of cohabitation. Fears have also been expressed that marriage would be diluted if homosexual persons were allowed to get married to each other and that other constellations of cohabitation would in time possibly be included in marriage. It is of course not possible to give any firm answer to the question whether introducing the ability for homosexual people to get married would have any impact on the frequency of marriage between heterosexuals. However, it may be said that such a reform would not automatically need to result in other constellations of co- habitation having to be included. Ultimately, this is an issue for the legislator, but if such a step were to come into question at any time in the future, it would in my opinion entail a greater deviation from the prevailing trend than would marriage for couples of the same sex. The need for statutory amendments. One issue that also needs to be answered is whether a statutory amendment is really necessary, since the legal effects of marriage do not significantly differ from those accompanying registered partnership. This may of course be viewed as an argument against a statutory amendment. However, my assessment is that, from several different perspectives, there is reason to have common legislation for homosexual and hetero- sexual persons who wish to manifest the relationships they have established. A statutory amendment would also be in with what may now be considered to represent the opinion of many people. Finally, there is of course a problem as regards the objection advanced from various quarters, namely that the international private and procedural law system of rules is not adapted to marriage other than that entered into between a man and a woman. In the current situation, it is not likely that any changes in the various conventions applicable to the area of family law will be amended so that the same rules would apply to both heterosexual marriage and a marriage where the spouses are of the same sex. The situation is in other respects the same in the case of registered partnership. This has not impeded us and several other countries from introducing rules on registered partnership, and some countries – the , , , and South – have, notwithstanding the lack of international harmonisation, not hesitated in taking the step to open marriage up to couples of the same sex. I cannot see that the inadequate adaptation of the system of rules for international private and procedural law should need to comprise an impediment to Swedish legislation in this area. In many respects, the issue in the current situation is perceived to be an awareness issue. It is important that, if legislation is introduced, efforts are made to inform those affected by the reform. My conclusion is that the reasons that have been advanced against marriage for couples of the same sex are not of sufficient substance and cannot outweigh the reasons that support a statutory amend- ment. The introductory section of the Marriage Code (ÄktB) defining marriage should consequently be extended to also include couples of the same sex. As at present, those who have entered into marriage should be designated as spouses in the Code. The rules contained in the ÄktB would thereby become applicable to all marriage regardless of the sexual orientation of the spouses. The same applies to other Swedish enactments related to marriage and spouses. No special provision regarding this is required. The presumption of paternity contained in Chapter 1, Section 1 of the Code on Parents, Children and Guardians should however only apply in those cases where the mother is married to a man at the time of the childs birth. The issue of parenthood for a woman who is married to the mother of the child should for similar reasons be presumed to lie outside the ambit of my assignment. Transitional arrangements for registered partnership I propose that the Partnership Act be repealed simultaneously with couples of the same sex being given an opportunity to enter into marriage. After the amendments made to the ÄktB have entered into force, a partnership that is registered in and which has not been dissolved shall take effect as a marriage. In addition, certain consequential amendments are required to the ÄktB and certain other enactments. International private and procedural law issues EC legal regulations. The II Regulation – which, among other things, regulates the jurisdiction of the courts in the EU Member States to entertain issues relating to divorce, separation and annulment of marriage and the recognition of judgments issued by the EU Member States in these matters – probably does not at present cover marriage where the spouses are of the same sex.TPF1FPT However, the equivalent also probably applies regarding other EC legal regulation to the extent that such rules do not in their turn refer to national law. In the current situation, the point of departure should therefore be deemed to be that our own rules on marriage contained in the 1904 Act on certain international legal relationships regarding marriage and guardianship (IÄL) apply to marriage where the spouses are of the same sex. It cannot be assumed that a convention-based enactment can be applied to marriage between spouses of the same sex. However, no express rule should be introduced providing that convention-based legislation should apply to such marriage. The basic rule should be that such matters are instead referred to the body administering the law to determine, on the basis of general principles of convention-friendly inter- pretation, how convention-based enactments should be applied in relation to marriage where the spouses are of the same sex. I propose, however, that an express exemption be introduced into the 1931 Ordinance on Legal Relationships relating to Marriage, Adoption and Guardianship (NÄF) – which is based on the Nordic Marriage Convention of 1931 – providing that the Ordinance does not apply to marriages that have been entered into between two women or between two men. Thereby, the rules contained in IÄL on entry into marriage and matrimonial cases, 1TP Regulation (EC) no. 2201/2003 of (Brussel II Regulation) is in the application of the law given priority over the application of all international instruments in the area and also over the Member States own national rules. However, is not bound by the regulation. is it binding between and owing to a reservation in favour of NÄF. etc. will instead apply to couples of the same sex who have links with another Nordic country. The requirement of a link to when entering into marriage. In my opinion, no special requirement should be imposed on a link to corresponding to those referred to in the Partnership Act for a couple of the same sex to be allowed to enter into marriage in . The provisions on applicable law regarding the right to enter into marriage may, however, result in there being an impediment to marriage when those who wish to get married are neither citizens of nor are resident in countries that allow a couple of the same sex to enter into marriage. The rule on exclusions contained in IÄL should be sufficient to enable any problems to be resolved. Swedish jurisdiction in matrimonial cases. should there be introduced any general rule providing that a marriage that has been entered into in should always be able to be dissolved in . Such a rule would come into direct conflict with the II Regulation because it would entail a general and unilateral extension of Swedish jurisdiction. It could then not be applied in in relation to other EU Member States. A provision that is limited to apply to spouses of the same sex would entail special legislation for homosexual relationships. In my opinion, one solution may instead be that the current regulation on Swedish jurisdiction over marriage cases be given a somewhat wider scope of application so that it can be applied in the probably rather few and compassionate cases where a couple cannot have their marriage dissolved anywhere else. I also propose that IÄL is amended so that matrimonial cases may be entertained by a Swedish court if there are special reasons for an action to be considered in , provided that one of the spouses is a Swedish national or the plaintiff cannot have her/his action considered in the State where she or he is a citizen or is resident. Foreign registered partnerships. When the Partnership Act is repealed, there will no longer be any express rules regarding the position we should adopt in respect of those forms of cohabitation in other countries that resemble registered partnership. It should be possible for foreign forms of cohabitation to still be afforded the same legal effects in as marriage in those cases where Swedish law should apply to the relationship. I cannot see any cause in this connection for making any exception for such forms of cohabitation regulated abroad that, in parallel with marriage, apply to couples of different sex. The foreign forms of cohabitation that are to be recognised in should, however, have basically the same legal effects as a marriage in the country in question. The reservation should also be made that my proposal only relates to the relevant parts of other laws and enactments because an inter- pretation of convention-based legislation may result in the legis- lation not being deemed to relate to cohabitation between people of the same sex, and scope should be provided for a convention- friendly interpretation. I propose that a general rule be introduced in IÄL with this content. How will Swedish marriage for couples of the same sex be treated abroad? Marriage between spouses of the same sex that has been concluded according to Swedish law will probably have legal effects in certain countries but not in others. It may be assumed that those countries that have implemented corresponding legislation will respect a marriage entered into in . I have also drawn the con- clusion that countries with legislation corresponding to our rules on registered partnership may possibly recognise marriage as a legal institution and in that event apply their national rules on the legal effects of a partnership-like form of cohabitation. Other countries may distance themselves from marriage for couples of the same sex to a greater or lesser extent. The formalities for entering into marriage Marriage can be entered into by a religious wedding ceremony within a religious community or a civil wedding ceremony. In the former case, the ceremony is conducted by a priest within the Church of or an official from another religious community that has been empowered to perform wedding ceremonies. It is also necessary for the official of the religious community to have been granted authorisation to officiate at weddings. The Kammar- kollegiet (Swedish Legal, Financial and ) determines issues concerning the right to officiate at wedding ceremonies for religious communities other than the Church of and concerning authorisation for their officials. Authorisation for priests of the Church of to conduct wedding ceremonies ensues directly from a provision contained in Religious communities and their officials authorised to conduct wedding ceremonies are under no obligation to do so. A civil wedding ceremony is conducted either by a legally qualified judge of the district court or by a specially appointed civil wedding ceremony official. Such appointments are made by under the Marriage Code. The preconditions for appointment and the procedure generally are, however, not governed by statute. Anyone holding public office as a civil wedding ceremony official is under an obligation to marry all those who satisfy the legal requirements for entering into marriage. Registration instead of wedding ceremony? I have considered whether a wedding ceremony could be replaced by a simple registration procedure but have concluded that there are several reasons against having such a system. One reason is our obligations under the UN Convention regarding consent to, minimum ages for and registration of marriage. The Convention imposes requirements for a certain verbal procedure. If the requirements of the Convention are to be satisfied, the practical difference between what must occur at a wedding ceremony and a registration would not be particularly great and consequently would be gained by introducing a registration procedure. More- over, a transition to a registration procedure presupposes that marriage can only be entered into by a civil procedure, as it can be a conceivable alternative to retain religious wedding ceremonies and simultaneously provide for civil wedding ceremonies to be replaced by registration with the Tax Authority. Considering the fact that people in general attribute great importance to the circumstances under which marriage is entered into, a registration procedure may also be perceived to be a gross simplification of the procedure. Couples who wish to have a solemn setting for entering into marriage would moreover be compelled to undergo duplicate procedures. Marriage should thus still be entered into by a special ceremony and not through registration. The words wedding cere- mony (in Swedish vigsel) should be retained as a designation for the ceremony. Should the system of freedom of choice between a religious wedding ceremony within a religious community and a civil wedding ceremony be retained? A system of civil wedding ceremonies as such only constitutes a clearer expression of marriage as a purely civil law relationship. The fact that the Church of is now separated from the State, together with the general principle of the neutrality of the State on religious issues, can be presented as reasons for a religious community not being able to retain its right to represent the public in connection with entering into marriage. However, there are several reasons for opposing a transition to such a system. Among other things, public opinion on this matter should be taken into account. From the survey conducted at my request by Statistics , it is indicated that a clear majority of the public want to retain the current system. have any disadvantages with the system that we have today been found. It would certainly appear very difficult for the public to understand if the present freedom of choice were removed. Moreover, such an amendment may, if it were implemented at the same time as the possibility is created for couples of the same sex to get married, have negative consequences for the general attitude towards such marriages and to homosexual people in general. For many people it would also entail repetition and possibly costs to first enter into marriage by a civil procedure and thereafter have the marriage blessed in a separate religious ceremony. As more than half of all marriages are entered into through religious wedding ceremonies, a transition to civil wedding ceremonies only would also involve great practical inconvenience. The loss of resources that would arise would be difficult to replace. All wedding ceremonies could not actually be dealt with within the current system for civil marriage ceremonies, and a new organi- sation would be required. To allow the to deal with all wedding ceremonies in would not be free from compli- cation and would also be expensive for the State. In my opinion, the wishes of society to retain the current freedom of choice in addition to the practical problems that would arise in the event of a transition to civil wedding ceremonies are alone so substantial that we should, for reasons of principle, refrain from introducing mandatory civil marriage. The Church of is dealt with separately in relation to other religious communities as regards the right to perform wedding ceremonies and authorisation for wedding ceremony officials. The current differences appear to be unjustified set against the back- ground of the changed relationship of the Church of and the State and also considering the point of departure and principle that the State should as far as possible assume a neutral position in relation to the various religious communities. The Church of should consequently be dealt with in the same way as other religious communities in the said respect. I have also deliberated on whether a common system should be introduced for the appointment of wedding ceremony officials within religious communities and civil wedding officials. However, I have concluded that the preconditions for the introduction of a system do not prevail. Matters relating to the right of religious communities to perform religious wedding ceremonies and the authorisation of their officials to conduct wedding ceremonies should, in my opinion, still be considered by the Kammarkollegiet. is there reason to deviate from the current system of both a wedding permit for the religious communities and the appointment of individual officials. Consequently there should be no amend- ment in this respect, except as regards the introduction of a requirement for a wedding permit for the Church of and the appointment of the Churchs officials. I consequently propose that the 1993 Act on the right of religious communities other than the Church of to perform wedding ceremonies, following amendment of the title, should be amended in accordance with that stated. It is not proposed that the new rules on appointment regarding authorisation to perform wedding ceremonies should apply to priests of the Church of who, at the time of the law coming into effect, are authorised to perform wedding ceremonies under the provisions of the ÄktB. However, this is subject to the pre- condition that they have been notified to the Kammarkollegiet no later than one year thereafter and that the Church of has before then applied and been granted a wedding ceremony permit. The provisions contained in ÄktB on automatic authorisation to perform wedding ceremonies for priests of the Church of be repealed, although the authorisation continues for tran- sitional purposes for a period of one year. Moreover, the provisions contained in ÄktB referring to the internal rules of the Church of should be reworded to more accurately express the position of the Church of as being on a par with other religious communities as regards wedding ceremonies.