Legal Approaches to Child Marriage Concluded Abroad

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Department of Law Autumn Term 2020

Master’s Thesis in Private International Law 30 ECTS

Legal Approaches to Child Marriage Concluded Abroad

A Comparison between Swedish Private International Law and English and Scottish Private International Law on Child Marriage Author: Eira Sjösvärd

Supervisor: Professor Maarit Jänterä-Jareborg

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Acknowledgments

Hereby, my master’s thesis in private international law is completed.

I am grateful to those who patiently proofread this thesis and for their valuable feedback.

I would like to give special thanks to my supervisor for this work, Maarit

Jänterä-Jareborg, for her dedicated guidance and support.

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1 Introduction ...1

1.1 The Phenomenon of Child Marriage ...1

1.2 Defining Age Limits to Marry ...2

1.3 The Aim of this Thesis ...4

1.4 Demarcations ...5

1.5 The Applied Method ...6

1.5.1 The Comparative Method ...6

1.5.1.1 ‘The Contrast between the Domestic and the Other’ ...6

1.5.1.2 Macrocomparison and Microcomparison ...7

1.5.1.3 The Steps in Comparative Research ...8

1.6 Sources Used ...10

1.7 Outline ...11

2 Key Connecting Factors in Personal Matters ...11

2.1 Connecting Factors ...11

2.2 Sweden ...12

2.2.1 Nationality ...12

2.2.2 Habitual residence ...13

2.3 England and Scotland ...14

2.3.1 Domicile ...14

2.3.1.1 Domicile of Origin ...15

2.3.1.2 Domicile of Choice ...16

2.3.2 Habitual Residence ...19

3 Swedish Law ...20

3.1 Swedish Substantive Law on Marriage ...20

3.2 Swedish Private International Law on Marriage ...21

3.2.1 Amendments of 2004 ...22

3.2.1.1 Replacing the Principle of Nationality as for Marriage in Sweden ...22

3.2.1.2 Recognition of Foreign Marriages ...24

3.2.2.1 Recognition of Foreign Marriages ...27

3.2.3.1 Non-Recognition in Respect of All Child Marriages ...29

3.2.3.2 The ‘Escape Clause’ ...32

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3.2.3.3 Current Swedish Legislation in Summary ...33

4 The Laws of England and Scotland ...33

4.1 Substantive Laws on Marriage in England and Scotland ...33

4.2 Private International Law on Marriage in England and Scotland ...34

4.2.1 The Distinction Between Form and Capacity ...34

4.2.2 The Law Applicable to the Capacity to Marry ...36

4.2.2.1 Intended Matrimonial Home Theory and Dual Domicile Theory ...36

4.2.2.2 Antenuptial domicile ...42

4.2.2.3 Public Policy ...43

4.2.2.4 Current Legislation in England and Scotland in Summary ...44

5 The Implications of Recognition and Non-Recognition ...45

5.1 The Occurrence of Child Marriage in Sweden ...45

5.1.1 Statistics Concerning Child Marriage ...45

5.1.2 Insufficient Protection Against Child Marriage ...47

5.1.3 Towards Increased Protection ...48

5.2 Consequences of Non-Recognition ...49

5.2.1 General Remarks on the Reform’s Impact ...50

5.2.2 Preclusion of Legal Effects of Marriage ...54

5.2.3 Limping Marriages ...56

5.2.4 International Commitments ...61

5.2.4.1 Convention on Rights of The Child ...61

5.2.4.2 European Convention on Human Rights ...65

5.3 Summation ...68

6 Concluding Remarks ...69

Bibliography ...71

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1 Introduction

1.1 The Phenomenon of Child Marriage

Child marriage raises a number of legal as well as moral questions. What is the appropriate age to be allowed to marry? Should someone below the age of 18, i.e. the age many countries strive towards establishing as a minimum age in order to marry, ever be allowed to marry or have one’s marriage recognised; why or why not? What are the consequences of either solution? Needless to say, child marriage is a delicate issue and the debate revolving around it is sometimes quite polarised. In 2016, the year after a drastic increase of people seeking refuge in Sweden with a debate about child marriage following, the Swedish Children’s Ombudsman argued that children cannot at all consent to marriage. Van Coller goes as far as arguing that we should not even speak of ¹ child marriage as a concept because it confuses what ‘marriage’ with a child really ought to be considered as – a crime. Instead, he argues, we ought to call the ² phenomenon ‘paedogamy’, deriving from the words ‘paedo’ and ‘gamy’, the former which we already use in other terms such a paedophilia! While perhaps an extreme ³ point of view, this type of argumentation shows just how sensitive of a topic child marriage, as a marriage with at least one of the parties being below the age of 18 will be referred as in this thesis, really is. However, when scratching the surface of the phenomenon it becomes evident that the questions surrounding it are multifaceted, even if it might be a phenomenon that one wished simply did not exist.

Traditionally, Sweden has had quite a liberal approach as to marriages with an international character, whether it be a marriage entered into in Sweden between foreign nationals or marriage entered into abroad. This has changed in recent years. As regards marriage where one of the parties is below the age of 18, today Sweden has a legislation that more or less makes impossible the recognition of any such marriages regardless of the circumstances in the individual case. As elaborated in this thesis, a contributing factor to this development has been recent years’ drastic increase of refugees seeking

Malmberg, F., Ett barn kan inte samtycka till äktenskap, Svenska Dagbladet, 2016–02–16.

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Van Coller, A., Child Marriage – Acceptance by Association, International Journal of Law, Policy and the Family,

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2017, p. 364.

Van Coller, p. 364.

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asylum in Sweden, bringing with it a growing number of married children. This very ⁴ strict approach is without resemblance when comparing to many other European countries that in some way or another allow the entering of child marriages and, or, the recognition of such marriages concluded abroad. England and Scotland, with some distinctions between them though otherwise very much alike as regards law on child marriage concluded abroad, are examples of jurisdictions which do not take the same stern stance, but offer a somewhat more flexible approach as to the phenomenon of child marriage. A flexible approach is not necessarily a better one, and as elucidated in this thesis both approaches have their implications – good and bad. Sometimes one might think that the consequences of one of the approaches is unnecessary or too stringent. On the other hand, consequences of the other approach might strike one as undesirable or even in some cases abhorrent.

1.2 Defining Age Limits to Marry

At what age one is allowed to marry greatly varies depending on the legal system in question. There is no convention-based definition of child marriage. However a number of international conventions contain provisions on the subject. Article 1 of the UN Convention on Rights of the Child states that for the purpose of the Convention a child ⁵ means every human being below the age of 18, unless majority is attained earlier according to the law applicable to the child. The UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage specifies no ⁶ minimum age for marriage. However, according to Article 2 of that Convention, State Parties shall take legislative action to specify a minimum age for marriage, and no marriage shall be legally entered into by any person below this age. Furthermore, the General Recommendation No. 21 Article 16(2) of the Committee of the UN Convention

Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, Journal of

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International and Comparative Law, 2019, pp. 348–349.

Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General

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Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49.

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Opened for

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signature and ratification by General Assembly resolution 1763 A (XVII) of 7 November 1962, Entry into force: 9 December 1964, in accordance with article 6.

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on the Elimination of Discrimination Against Women, states that all necessary action, ⁷ including legislation, shall be taken in order for a minimum age to be specified.

According to its paragraph 36 the minimum age for marriage should be 18 years for both men and women. All three conventions are signed and ratified by Sweden as well as by the U.K.

As a result of these human rights instruments a trend towards raising the age of consent in order to marry has had an impact on legislation in many Western countries, particularly in Europe. Paragraph 36 of the UN Convention on the Elimination of ⁸ Discrimination Against Women refers to the World Health Organization (WHO), according to which marriage at an early age for girls poses a risk to their health as regards early pregnancies, increased risk of sexually transmitted diseases as well as child and mother morbidity and mortality. Furthermore, early marriages endangers the access to education and future possibilities on the job market, this being the case for girls especially. In the preparatory works for the latest amendments to the legislation governing child marriage in Sweden, the phenomenon was described as a harmful custom which has to be counteracted. In the English case of Alhaji Mohamed v. Knott ⁹ ¹⁰ (hereafter Mohamed v. Knott) a marriage solemnised abroad between a girl aged 13 and a man aged 26 was recognised according to English law. This sparked a heated debate in the U.K. about marriages at an early age. Lawyer Deech commented ‘[…] one can easily imagine the wife as a future deserted uneducated mother incapable of earning a living or bringing up her children’. ¹¹

At an international treaty level there seems to be at least some consensus that states should strive towards a minimum age of 18 for marriage. At a national level, however, there seems to be no such thing even close to consensus, and this makes difficult the

Convention on the Elimination of All Forms of Discrimination against Women, Adopted and opened for signature,

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ratification and accession by General Assembly resolution 34/180 of 18 December 1979, entry into force 3 September 1981, in accordance with article 27(1).

Dethloff, N., Child Brides on the Move: Legal Responses to Cultural Clashes, International Journal of Law, Policy

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and the Family, 2017, p. 303.

Government Bill, Prop. 2017/18:288, Prohibition Against Recognition of Foreign Child Marriages, p. 1.

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Alhaji Mohamed v. Knott, [1969] 1 Q.B. 1 (1968).

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Murphy, J., Rationality and Cultural Pluralism in the Non-Recognition of Foreign Marriages, International &

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Comparative Law Quarterly, 2000, p. 5, with reference to Deech, R., Immigrants and Family Law, New Law Journal 110, 1973, at 111.

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question of how to respond to legislation much differing from the legislation of one’s own legal system. For what happens when borders are crossed and our conception of how things ought to be is challenged?

1.3 The Aim of this Thesis

The aim of this thesis is to examine the approach of three legal systems, Sweden, England and Scotland, as regards the regulation of child marriage concluded abroad in private international law. The implications of recognition and non-recognition are elaborated and analysed with the purpose of raising a discussion of the outcomes of the respective systems way of regulating child marriage concluded abroad.

As the reader will become aware, today’s Swedish legislation on child marriage concluded abroad, coming into in 2019, applies for everyone regardless of any connection to Sweden at the time of the conclusion of the marriage. However, as nationality and habitual residence was the prevailing connecting factors in Swedish private international law on child marriage before the latest legislation, it is interesting for the purpose of this thesis to include a discussion about previous Swedish legislation as well. Also as regards the English and Scottish laws on the matter, previous legislation is discussed.

A comparative method, which is further elaborated in section 1.5, offers the opportunity to look beyond borders for solutions to often very complex problems – child marriage definitely qualifying as a complex problem. Zweigert and Kötz describe comparative law quite beautifully ‘[…] by the international exchanges which it requires, comparative law procures the gradual approximation of viewpoints, the abandonment of deadly complacency, and the relaxation in fixed dogma’. As ¹² explained further in section 1.5.1.2, the aim of this thesis is not necessarily to conclude which system is the ‘better’ one, but rather to put Swedish legislation into perspective by offering, as Zweigert and Kötz put it, an international exchange.

For this purpose, the questions at issue in this thesis are

Zweigert, K., Kötz, H., An Introduction to Comparative Law, Clarendon Press, 1998, p. 3.

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i) how is child marriage concluded abroad regulated in Swedish private international law on the one hand, and private international law in England and Scotland on the other, and

ii) what are the legal consequences of non-recognition in the respective legal systems for individuals in child marriage concluded abroad?

1.4 Demarcations

This thesis is on the subject of private international law in Sweden compared to English law as well as Scottish law as regards marriage where at least one of the parties is of insufficient age according to the respective systems, the laws of England and Scotland being very much alike in this field. As private international law interacts with national substantive law, the latter is covered as well. The primary focus is on child marriages concluded abroad. As stated in the introduction, the existence of child marriage in Sweden has been a topic of discussion and debate in the recent years. As a result there is much material to use when investigating Swedish legislation and how it developed to be what it is today, including statistics of the existence of child marriages in Sweden.

Therefore, Sweden is in many respects the centre of attention in this thesis while the laws England and Scotland works as an input on how child marriage may be approached.

As mentioned above, national substantive law is accounted for in this thesis in order to give the reader insight on how age as a factor in order to marry is regarded in the respective legal systems. However, as the primary focus in this thesis is child marriage concluded abroad, a thorough and comprehensive account of national substantive law on marriage would disengage this focus. Therefore legislation concerning restrictions and requirements of people officiating marriages is not covered in this thesis. Nor is criminal law covered, even though this field of law is very much relevant as regards child marriage. Furthermore, EU-legislation is left outside the scope of the thesis.

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1.5 The Applied Method

As stated above, in this thesis the phenomenon of child marriages will be examined from a Swedish point of view as well as from an English and a Scottish point of view, the latter two being covered in the same chapter. Therefore, a comparative method is applied. This method is closer described in the following section. The development of the law governing child marriage in Sweden when compared to England and Scotland is very much different. The headings are therefore quite different in the chapter concerning Swedish law and the in chapter about the laws of England and Scotland. Something for the reader to bear in mind, however, is that even though England and Scotland are very much alike in questions of private international law on child marriage, they are not entirely of the same legal tradition. While England is a country of common law tradition, that Zweigert and Kötz describe has ‘developed in insular self-sufficiency’, Scotland has throughout the last centuries been influenced by the law of Continental Europe, i.e. civil law. As will be evident from chapter 4 on the laws of England and ¹³ Scotland, Scotland has adopted the English binding force of precedent, but makes use of statutes to a further extent than England. ¹⁴

Together with a comparative method a legal dogmatic method is used, the latter method being about analysing available legal sources, consisting of legislation, preparatory works, case law and literature. The purpose with a legal dogmatic method ¹⁵ may be described as the searching for a solution of a legal problem through the application of legal rules. ¹⁶

1.5.1 The Comparative Method

1.5.1.1 ‘The Contrast between the Domestic and the Other’

Within comparative law there is no one standard method that should always be followed. Instead there are different approaches the comparatist can choose between ¹⁷ depending on, of course, the topic itself but also on the purpose of the comparison. In

Zweigert and Kötz, p. 202.

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Zweigert and Kötz, pp. 202–203.

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Kleineman, J., Rättsdogmatisk metod, Juridisk Metodlära, Studentlitteratur AB, 2018, p. 21.

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Kleineman, p. 21.

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Örücü, E., Methodological Aspects of Comparative Law, European Journal of Law Reform, 2006, p. 30.

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the following sections, these different approaches will be touched upon while also specifying more precisely which approach is applied in this work. By way of introduction and regardless of what approach one chooses, comparative law can very concisely be said to be the comparison of the different legal systems of the world, according to Zweigert and Kötz. In more recent comparative law theory, Samuel offers ¹⁸ a quite more nuanced (although still very synoptical) description:

‘[…] a process in which the comparatist takes several objects in order to study them within a scientific framework in which the object or element being studied is viewed in terms of the other. […] There is the domestic legal object or element and there is the foreign legal object or element; and it is the contrast between the domestic and the other that generates knowledge progression’. ¹⁹

The task of comparison can favourably be divided into a number of steps, which are presented below. However, before viewing these steps, first a main division within comparative law ought to be clarified.

1.5.1.2 Macrocomparison and Microcomparison

The comparison between different legal systems can according to Zweigert and Kötz be done in two principal ways – through macrocomparison and microcomparison. In ²⁰ macrocomparison, a specific and precise area of law is not the subject of research.

Subject for macrocomparison could, for example, be different techniques in legislation, styles of codification or methods of statutory interpretation. Microcomparison on the ²¹ other hand revolves around specific legal institutions or problems, i.e. the rules used to solve actual individual problems. Most of the work within comparative law is carried ²² out at the level of microcomparison. In this thesis the latter category – ²³

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Samuel, G., An Introduction to Comparative Law Theory and Method, Hart Publishing Ltd, 2014, p. 11.

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Örücü, p. 32.

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microcomparison – is applied. A legal institution, that of marriage, and a specific individual problem, that of child marriage, is identified and the Swedish as well as the English and Scottish rules governing this phenomenon are under scrutiny.

1.5.1.3 The Steps in Comparative Research

The first step in a comparative research, as explained by Zweigert and Kötz, is to simply have an idea. An idea can emerge from the dissatisfaction with a solution, or the lack ²⁴ thereof, with a problem in one’s own national legal system. The search for a solution ²⁵ perhaps better suited for the problem in question may sometimes be found in another legal system and, therefore, a comparison with that other system is desirable. It may ²⁶ however also be a more disinterested investigation of another legal system in order to sharpen one’s criticism of one’s own law that might give rise to an idea. The latest ²⁷ amendments of the Swedish law governing child marriage concluded abroad has been subject to heavy criticism from many directions. This is why a comparison with a legal system differing greatly from the Swedish legal system helps putting the latter, and its possible implications, into perspective.

When an idea is established, the second step is to find rules that are functionally equivalent to the rules governing the problem in one’s national legal system. Here one ²⁸ will in fact find, according to Zweigert and Kötz, that different legal systems give the same or very similar solutions to certain problems. Zweigert and Kötz emphasise, ²⁹ however, that there are areas – family law being one of them – that are highly impressed by especially strong moral and ethical feelings, sometimes rooted in religion, historical tradition and cultural development, that one cannot expect the rules governing these areas to be congruent. ³⁰

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The third step is the choice of which legal systems to compare. The idea of a ³¹ comparison between Swedish law and specifically English as well as Scottish law arose after the author of this thesis studied international family law in Scotland at University of Glasgow in the autumn of 2019. This awoke the author’s interest for the topic of how child marriage concluded abroad is governed in these jurisdictions. Furthermore, the approaches in England and Scotland as to child marriage concluded abroad is often overlooked in international comparisons, which makes it relatively newsworthy from a comparatist point of view.

As mentioned above, depending on the purpose of the comparison there are different approaches the comparatist can choose from. Here, Samuel explains, a differentiation can be made between different types of knowledge; knowledge about what causes something (what caused X?); hermeneutical knowledge (what does X mean?); structural knowledge (what is the structure between X and Y?); functional knowledge (what is the function of X?). The basic methodological principle within comparative law, and also ³² the one that will be applied in this thesis, is the principle of functionality. Örücü states ³³ that at a level of microcomparison it is ‘widely accepted that the ‘true basis’ of comparative law is that of functional equivalence’. It is functionalism that determines ³⁴ the choice of laws to compare as well as the scope of the undertaking. If one seeks to ³⁵ investigate child marriage as a phenomenon, and child marriages concluded abroad specifically, it is the rules in the English and Scottish laws that are functionally equivalent to the Swedish rules, i.e. rules of private international law, that are the objects of the comparison.

Örücü describes what she calls the functional-institutional approach. This approach ³⁶ answers the following question: Which institutions in system B performs an equivalent function to the one under survey in system A? She closer describes the method as ³⁷

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Samuel, pp. 21–22.

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Örücü, p. 32.

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Örücü, p. 33.

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Örücü, p. 33.

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follows: ‘one starts with a social problem or need in society, discovers the institution that deals with it and then looks for other institutions (legal or otherwise) in other societies which are functionally equivalent i.e. which deal with the same problem or need’. Rules in Swedish law governing child marriage concluded abroad is to be ³⁸ found in codified law whereas the equivalent rules in the laws of England and Scotland to a great extent is to be found in case law.

Subsequent to the identification of relevant rules and a choice of which legal systems to compare, objective separate reports on each legal system must be given. The reports ³⁹ should in this stage be without any critical evaluation and should thus merely be juxtaposed. This is found in chapters 2, 3 and 4. It is only when the reader is familiar ⁴⁰ with the basic material governing the problem that the process, and fourth step, of actual comparison can begin. ⁴¹

The last step, according to Zweigert and Kötz, is a critical evaluation of what has been discovered, which is given in chapter 5 together with some concluding remarks in chapter 6. This evaluation can lead to different conclusions; the conclusion does not ⁴² have to, even though it may, be that one solution is the better and the other one worse. ⁴³ The conclusion may also be that the solutions are equally valid or that one solution is clearly superior, or, the comparatist might lean towards a new solution made out from parts of the different legal systems. ⁴⁴

1.6 Sources Used

The fact that the Swedish legal system is based on civil law tradition, while both the English and Scottish legal systems are based on common law, with the latter one, as explained in section 1.5, being influenced by Continental Europe, affects the sources used in this work.

Örücü, pp. 33–34.

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In Sweden, preparatory works to legislation has an outstanding position when legislation is under scrutiny. When referred to in footnotes, the titles of the preparatory works are translated into English. However, in the bibliography the full, Swedish title is given. In England as well as Scotland, on the other hand, one has to turn to case law when exploring contemporary law.

Furthermore, legal literature is an imperative contributor in understanding all three legal systems, the Swedish, English and Scottish, as well as in offering critique and a perspective on the respective approaches as to child marriage with an international character.

1.7 Outline

In the following chapter relevant connecting factors in Swedish private international law on child marriage and English and Scottish dito are accounted for. In chapter 3, Swedish law on marriage with an international character is investigated, offering a chronological review of how the law has developed, as of 2004 until today. In chapter 4, contemporary English as well as Scottish law is examined. With the respective laws clarified, in chapter 5 implications of recognition and non-recognition are elaborated and discussed. Last but not least, concluding remarks are given in chapter 6.

2 Key Connecting Factors in Personal Matters

2.1 Connecting Factors

Before the respective legal system’s legislation on child marriage specifically is elaborated, first the relevant connecting factors of private international law of each system are accounted for. An understanding of these are essential for the comparison between the different systems.

Today, more than ever before, family relations which do not stay within the borders of one country occur. Bogdan refers to such relations as a legal relationship with an ⁴⁵

‘international character’. Normally, internal rules of civil law are to be applied in these ⁴⁶

Bogdan, M., Svensk internationell privat- och processrätt, Nordstedts Juridik AB, 2014, p. 18.

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Bogdan, Svensk internationell privat- och processrätt, p. 18.

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cases as well. However, here lies ‘the core’ of private international law, as Bogdan ⁴⁷ puts it, for it must be settled which country’s law to apply. This is done by choice-of-⁴⁸ law rules, which as regards marriages with an international character is determined by connecting factors. In this chapter the relevant connecting factors in Swedish law and in the laws of England and Scotland are accounted for.

Habitual residence and domicile, two different concepts within private international law, are recurring in this work. Therefore it is important to clarify the distinction between the two. The two concepts differ from one another to the extent that they can lead to different outcomes in cases similar as to the facts. While habitual residence is increasingly used as a connecting factor within private international law, domicile as it ⁴⁹ is to be understood in private international law in England and Scotland is quite unique as a connecting factor. In the following section nationality and the concept of habitual residence in Swedish private international law are explained. This is followed by a section elaborating the connecting factor of domicile in English and Scottish private international law, as well as an account for the role of habitual residence in these two jurisdictions.

2.2 Sweden

2.2.1 Nationality

Nationality as a connecting factor is mentioned here only shortly. Nationality was in previous Swedish legislation on marriage with an international character a decisive factor of whether the Swedish marriage impediment of age limit would apply. If a person has more than one nationality and one of them is Swedish, a Swedish Court would most likely feel bound to treat the person in question as a Swedish national as regards choice of law, according to Bogdan. The number of cases where a person has ⁵⁰ more than one nationality is great, and it will probably keep growing as a consequence of the amount of people moving across borders.

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Cheshire, G., North, P., Fawcett, J., Private International Law, Oxford University Press, 2017, p. 172.

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2.2.2 Habitual residence

In personal matters, the prevailing conflict rule in Sweden is the lex domicilii, i.e. the law of the country where the person in question has his or her habitual residence. The ⁵¹ lex domicilii in Swedish private international law is not to be confused with domicile as understood in English as well as Scottish private international law, but it differs a great deal from it. As will be evident from the following chapter, habitual residence together ⁵² with nationality has in previous Swedish legislation been a connecting factor decisive of whether the Swedish age limit of 18 in order to marry could hinder recognition of a marriage concluded abroad with one of the parties being below the age of 18.

The concept of habitual residence as regards international marriages is defined in Chapter 7 § 2 in the Act (1904:26 s. 1) on Certain International Legal Relationships on Marriage and Guardianship (referred to as the 1904 Act hereafter), according to which a person is habitually resident in a country if the settlement, with respect to the duration and other circumstances, is to be considered permanent. Bogdan explains that there ⁵³ are, in principle, two requisites that has to be satisfied in order to acquire change of one’s habitual residence from one country to another. The first requisite, he continues, ⁵⁴ is of an objective nature, namely, the person must have changed his or her usual residence so that he or she from now on will reside in the new country. The second ⁵⁵ requisite, the subjective one, is that the person must have the intent to remain in the new country. The intent must not be to remain forever or indefinite, but it should at least be ⁵⁶ for a very long period of time. Even though the requisite is subjective, statements from ⁵⁷ the individual him- or herself must not be decisive as to whether a new habitual residence has been acquired. However, a person’s intent is presumed to be the same as ⁵⁸

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Chapter 7 § 2 in the 1904 Act: ‘Den som är bosatt i viss stat anses vid tillämpning av denna lag ha hemvist där, om

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bosättningen med hänsyn till vistelsens varaktighet och omständigheterna i övrigt måste anses stadigvarande’.

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Bogdan, Svensk internationell privat- och processrätt, pp. 134–135.

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the average person’s intent in the same situation, taking into account things such as lodgment, employment, family circumstances etc. ⁵⁹

There is no requirement of a minimum time during which one must reside in a country in order to acquire habitual residence. According to Bogdan, a person who ⁶⁰ moves to a country with the intent to reside there permanently can acquire habitual residence from day one. As an example, he explains that a quota refugee, arriving in ⁶¹ Sweden in organised forms, may acquire habitual residence from day one. He ⁶² furthermore asserts, that the refugee-example entails that the stay itself and intention to stay in the new country does not have to be voluntarily in order for a person to acquire a new habitual residence. ⁶³

2.3 England and Scotland

2.3.1 Domicile

In both England and Scotland, questions affecting status as regards family relations are determined by the law of a person’s domicile; the domicile of the propositus. One such ⁶⁴ matter is the essential validity of marriage, capacity to marry being a matter of ⁶⁵ essential validity (see section 4.2.1). The determination of one’s domicile is not necessarily an easy matter. To begin with there are two main classes of domicile:

domicile of origin and domicile of choice, the former being assigned to everyone at birth and the latter being something that everyone of sufficient age can acquire if certain requisites are fulfilled. ⁶⁶

Cheshire and North set out five general rules regarding domicile from the point of view of English law. The first one being that nobody can be without domicile, which is

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Cheshire and North, p. 145.

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made effective by the assignment of domicile of origin to everyone at birth. The ⁶⁷ second general rule is that no person can have two domiciles, something which is necessary on practical grounds since the object of insisting that no one shall be without domicile is to establish a definite legal system for the individual, governing his or hers rights and obligations. The third rule is that domicile signifies a connection with the ⁶⁸ law of a territory. In other words domicile does not necessitate a system that prescribes identical rules for all groups of persons. Such a system could for example be a system ⁶⁹ that allows different legal rules depending on religion or caste – it is still the law of the territory that governs each person domiciled there. As a fourth general rule there is a ⁷⁰ presumption in favour of the continuance of an existing domicile, and the burden of proof lies with the one claiming that a domicile of choice has been acquired. The last ⁷¹ rule is that the domicile of a person is to be determined according to English law and not according to a foreign concept of domicile. ⁷²

2.3.1.1 Domicile of Origin

As for England, domicile of origin is determined by the father’s domicile, if the child is legitimate, and if the child is illegitimate it is instead determined by the mother’s domicile. ⁷³

This is different from Scotland, where the Family (Scotland) Act 2006 makes legitimacy of a child irrelevant as regards questions of domicile. Instead, according to s.

22 of the Act, a child is domiciled in the same country as the parents where the parents are domiciled in the same country as each other and the child has a home with one or both of the parents. If these conditions are not satisfied, the child is domiciled in the country with which the child has the closest connection, according to s. 22(3).

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Cheshire and North, pp. 147–148.

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At the acquiring of a domicile of choice, the domicile of origin is placed in abeyance as long as the former is prevalent, and the domicile or origin revives as soon as the one of choice is lost. Domicile of choice merely supersedes domicile of origin, but it never ⁷⁴ obliterates it. ⁷⁵

2.3.1.2 Domicile of Choice

Acquisition of domicile of choice requires two requisites to be fulfilled, the requisite of residence and the requisite of intention. Established residence with the intention to ⁷⁶ remain there permanently must be proven. While the two criteria must concur, there ⁷⁷ need not, however, be unity of time in their concurrence; the intention to remain can either occur before or subsequent to the establishment of residence. ⁷⁸

Whether residence is established is a matter of fact, and from that fact intention can be inferred. In this way residence and intention are inter-related. Although the length ⁷⁹ ⁸⁰ of the residence is a material consideration when assessing domicile of choice, it is rarely decisive, and English case law even suggests that domicile of choice could be acquired within a few days or even upon arrival in a country. Time is not a sole ⁸¹ criterion of domicile regardless of what weight is given to it, and long residence does not in itself constitute acquisition of domicile, nor does brief residence make the acquisition of domicile impossible. ⁸²

As for the intention to remain at the place of residence permanently one must ask:

What is intention and how is it to be proven? In Udny v. Udny, Lord Westbury stated ⁸³ that the intention should be to reside permanently, by which is meant not temporary, or,

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Crawford, E. B., Carruthers, J. M., International Private Law: A Scots Perspective, Thomas Reuters, 2015, p. 94.

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Cheshire and North, p. 148. Crawford and Carruthers, p. 95.

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Udny v. Udny, (1866-69) L.R. 1 Sc. 441 (1869).

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for an unlimited time. Crawford and Carruthers explain that such an intention need ⁸⁴ not, however, be irrevocable, because ‘everlasting intention cannot reasonably be required of anybody’. The question of whether a person has fulfilled the requisite of ⁸⁵ intention is also, just like the requisite of residence, one of facts. However, the ⁸⁶ question of intention can be more difficult to prove than residence. Every thinkable event and incident in a person’s life can be of relevance and an admissible indication of a state of mind and nothing may be overlooked that might possibly show intention. ⁸⁷ According to Cheshire and North, the downside to this is that in a case where domicile is disputed the adduced evidence will often be voluminous and difficult to assess. ⁸⁸ Every case varies in circumstances, why there is no one fact of constant value. Hence, Cheshire and North argue, it is impossible to formulate a rule establishing the weight that ought to be given to a specific evidence. However, conduct is given greater ⁸⁹ weight than declarations of intention, especially where oral declarations are concerned. ⁹⁰

The establishment of domicile of choice in the somewhat distinct situation of refugees, the retaining of their domicile prior to the flight is not a necessity. However, ⁹¹ the motive which caused the flight militates against the inference that there was intention to reside permanently in the country in which a person seeks refuge. This, ⁹² together with the presumption against change of domicile from one’s domicile of origin to domicile of choice, might prevent the acquisition of a new domicile. The domicile ⁹³ of origin will remain until clearly superseded. This is not to say that the requisite of ⁹⁴

Udny v. Udny, (1866-69) L.R. 1 Sc. 441 (1869), at 458.

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Crawford and Carruthers, p. 98.

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intention cannot be formed subsequently and, if proven, the acquisition of domicile of choice is possible. This could be the case when the stay in the country of refuge ⁹⁵ continues after the original country has become safe. ⁹⁶

A distinction might possibly be drawn between a person who seeks to positively adopt to society and the legal system of the country of refuge and someone who merely seeks a safe haven indifferent of what society or legal system he or she will end up in. ⁹⁷ In the latter case a domicile of choice will not be acquired. ⁹⁸

Here lies a clear distinction between habitual residence and domicile. Habitual residence can be acquired even if someone only seeks a safe haven, indifferent of where he or she will end up. If the propositus stays long enough, he or she might become habitually resident in a country or jurisdiction, but not domiciled there.

In De Bonneval v. De Bonneval, in which a man with domicile of origin in France ⁹⁹ moved to England as a consequence of the French Revolution, the Court held that unless there is an intention to abandon the former domicile, a new domicile is not acquired. The man had resided in England for about 25 years when he finally returned to France. After his return he continued to live in England, though only occasionally.

The Court found that the man had in fact not abandoned his domicile of origin, i.e.

France. The outcome goes hand in hand with Crawford and Carruthers’ assertion that there will be no change to a domicile of choice from country A to country B if the person in question always had a plan at the back of his mind to leave country B to return to country A at some indefinite future date. ¹⁰⁰

The case illustrates just how high a threshold there is in order to acquire a domicile of choice from one’s domicile of origin. Furthermore, the case gives a taste of just how much weight is given to the requisite of intention by the courts. To have lived approximately one quarter/one third of one’s life in another country than the country of

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De Bonneval v. De Bonneval, 163 E.R. 296 (1838).

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one’s domicile of origin does not necessarily entail the acquisition of a domicile of choice!

2.3.2 Habitual Residence

Even though domicile is the prevailing connecting factor in both the English and Scottish legal systems, there has been a tendency to reject domicile in favour of residence, the concept of domicile being difficult to define. Habitual residence is ¹⁰¹ predominantly a question of fact, and there are a number of factors which a court may take into account in its assessment, factors which weight varies depending on the facts of the case and the area of law. In order to establish habitual residence there must be ¹⁰² some degree of stability or regularity in the residence and it cannot be temporary or intermittent; however, there is no need for permanence or an intention to reside indefinitely. ¹⁰³

Habitual residence as opposed to domicile, Cheshire and North explain, is a concept without the ‘legal artificialities’ of domicile. In the case of AR v. RN two children ¹⁰⁴ ¹⁰⁵ were found to have their habitual residence in Scotland after residing there 5 months despite the agreement between the parents that the children would return to France after a period of 12 months. This, Cheshire and North continues, is consistent with the ¹⁰⁶ factual nature of habitual residence and it would have been artificial to find that the children would have retained their habitual residence in France since they had integrated into the new social environment within the period of 5 months. ¹⁰⁷

Furthermore, the role of intention as regards habitual residence is somewhat different from that of domicile. Subjective factors are one of many factors in the assessment of

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AR v. RN [2015] UKSC 35.

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AR v. RN [2015] UKSC 35.

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whether habitual residence has been established. A person can be habitually resident ¹⁰⁸ in a state even with the intention at some further point move to another country. ¹⁰⁹

Cheshire and North nonetheless assert that it would be wrong to introduce a general substitution of habitual residence for domicile. They continue by explaining that the ¹¹⁰ connection between a person and a country provided by habitual residence is not strong enough to justify that person’s affairs always being determined by the law of that country. As to illustrate their point, in the case of an Englishman working abroad on a ¹¹¹ long-term contract, his personal affairs, such as the capacity to marry, ought, they argue, to be governed by the law of England, his domicile, and not the law of the country where he works, where he has his habitual residence. ¹¹²

3 Swedish Law

3.1 Swedish Substantive Law on Marriage

The prevailing legislation governing marriage in Sweden is found in the Marriage Code (1987:230) (äktenskapsbalken). In Swedish law (as is also the case in England and Scotland) a distinction is made between form and substance, form aiming at the conducting of the ceremony and contract of marriage, and substance being the parties’

capacity to marry. The former is regulated in Chapter 4 of the Marriage Code while the latter is regulated by Chapter 2 of the Code. In its present form, one has to reach the age of 18 in order to marry, according to Chapter 2 § 1.

Prior to the amendments of the Marriage Code in 2014, a person below the age of 18 could marry in Sweden if an exemption was granted by the competent Swedish authority. In order to be granted exemption, a requirement of special reasons (särskilda skäl) was stipulated. How a marriage would affect the young person’s development, ¹¹³ family life, education and social circumstances as well as the person’s age, the opinions

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Chapter 2 § 1 Marriage Code (1987:230) in its wording before 2014.

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of legal guardians and pregnancy were all factors that were to be considered before granting the exemption. In connection with a law amendment carried out in 2004, it ¹¹⁴ was emphasised in the Government Bill that such an exemption did not only result in a person below the age of 18 being exempt from the rule not allowing marriages if one or both of the parties are minor(s), but it also meant the person being exempt from the protection minority gives. In other words, minority protects the child from too early ¹¹⁵ marriages.

As regards foreign nationals, a group that was over-represented among the applicants for such exemption, it was said that cultural differences should not be a factor to take into account when considering whether the requisite of special reasons was satisfied. ¹¹⁶ It was argued that a general acceptance of marriages with one or both of the parties below the age of 18 would contradict fundamental Swedish values and that there should be no discrepancy between the number of granted marriages to Swedish nationals compared to foreign nationals. ¹¹⁷

Subsequent to a proposal by the Commission of Inquiry (utredningen) in their Government Official Report (Statens Offentliga Utredningar) from 2012, the possibility of exemption was removed from the law in 2014, the amended provision now stipulating an age limit of 18. The age limit of 18 still applies today and is without ¹¹⁸ any possibility of exemption.

3.2 Swedish Private International Law on Marriage

The 1904 Act is, in interaction with the Marriage Code, applicable on marriages with an international character. Again, rules regarding the form of a marriage must be distinguished from rules regarding the substance of a marriage. Together with the ¹¹⁹ Marriage Code this legislation has during the past 15 years been subject to a number of

Government Bill, Prop. 2003/04:48, Measures Against Child Marriage and Forced Marriage, p. 21.

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Government Bill, Prop. 2003/04:48, p. 21.

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Government Official Report, SOU 2012:35, Increased Protection Against Forced Marriages and Child Marriages,

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p. 58.

Bogdan, M., Maunsback, U., Private International Law in Sweden, Kluwer Law International B.V., 2020, p. 97.

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amendments. These amendments have brought with them changes for Swedish nationals as well as foreign nationals marrying in Sweden or abroad, among them the important change of the abolition of the possibility to be exempted from the age limit of 18 in order to marry in Sweden mentioned above. However, as concerns rules on marriage of private international law specifically, let us start with the amendments carried out in 2004.

3.2.1 Amendments of 2004

3.2.1.1 Replacing the Principle of Nationality as for Marriage in Sweden

Although the main focus in this thesis is child marriages concluded abroad, a brief account nevertheless ought to be given as of the rules governing conclusion of marriage in Sweden. In the beginning of the 2000s, so called honour-related problems within the family and close relationships was highlighted on the political agenda in Sweden. The ¹²⁰ main purpose of the law amendments of 2004 was to decrease foreign, but in Sweden resident, children's exposure to all forms of forced marriage. The law reform of 2004 ¹²¹ was somewhat the starting point of other law amendments to come, making the reasons behind the law amendments of 2004 important to illuminate.

Prior to the law reform of 2004, nationality was the primary connecting factor governing the right to marry in Sweden – the principle of nationality (nationalitetsprincipen). The prevalence of the principle of nationality in Swedish ¹²² law meant that foreign nationals could enter into marriage in Sweden only having to take into account any marriage impediments according to the law of their foreign State of nationality. There was however an exception; if one of the parties was below the age of fifthteen the public policy-reservation found in Chapter 7 § 4 of the 1904 Act would hinder the entering of such a marriage, a clause applicable still today when the ¹²³ enforcement of a provision in the 1904 Act would be in conflict with public policy.

Nevertheless, a marriage permitted by the law of the child’s foreign State of nationality

Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, För barns bästa, Iustus Förlag AB, 2017, p.

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199.

Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 199.

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Chapter 1 § 1 Act (1904:26 s. 1) on Certain International Legal Relationships on Marriage and Guardianship in its

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wording prior to the amendments of 2004.

Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 349.

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required permission by a competent Swedish authority. This meant that a child of ¹²⁴ foreign nationality and 15 years of age could marry in Sweden. Subsequent to the ¹²⁵ amendments of 2004, however, Swedish law governs the right to marry in Sweden according to Chapter 1 § 1 of the 1904 Act.

Behind the principle of nationality was the argument that legal relationships within the personal sphere ought to be governed by the law of the State which the person in question has the closest and strongest connection to. But as mobility across borders ¹²⁶ was increasing the principle of nationality became less relevant as a connecting factor since large amounts of people simply did not reside in their State of nationality. ¹²⁷ Hence, the development within private international law was moving away from the principle of nationality. Another reason for the abandonment of the principle of ¹²⁸ nationality was the fact that Swedish and foreign nationals were treated differently which was principally considered inappropriate. Furthermore, it was argued that the ¹²⁹ application of the nationality principle in fact rarely had any implications for foreign nationals as regards the test of whether marriage impediments were at hand, since internationally the number of impediments had decreased. In practice Swedish and ¹³⁰ foreign law rarely gave different results and therefore there was no real reason to differentiate between Swedish and foreign nationals in this respect.

With the abandonment of the principle of nationality as the primary connecting factor decisive as of which law to apply, another decisive factor had to take its place. An important aspect in connection with the amendment in 2004, was that Swedish authorities should not contribute to marriages that are non-desirable from a Swedish point of view. Habitual residence, which by then had become the most important ¹³¹ connecting factor in private international law, was an alternative, but it was argued in

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Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, pp. 349–350.

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the Government Bill that the disadvantages were more or less the same as with the principle of nationality. Namely, it did not cater to the wish that Swedish authorities ¹³² should not contribute to non-desirable marriages. Habitual residence as a connecting ¹³³ factor would still enable persons with habitual residence abroad to marry in Sweden without regard to Swedish law. Furthermore, adopting habitual residence as the decisive connecting factor would likely lead to practical problems when applied since establishing habitual residence can be a complicated matter with many aspects to take into account. The alternative best suited in relation to the aim with the amendment ¹³⁴ was a rule assigning the law of the State where the marriage was solemnised. In other words, if a marriage was concluded in Sweden, Swedish law would apply, regardless of the nationality of the parties. In addition this stance worked as a statement that the Swedish marriage impediments were adamant. ¹³⁵

3.2.1.2 Recognition of Foreign Marriages

Non-recognition of a marriage in Swedish private international law means the marriage will be considered null and void. In respect of foreign marriages, the main rule prior ¹³⁶ to 2004 was that a marriage was regarded as valid as to form if it was valid in the State where it was solemnised according to Chapter 1 § 7 of the 1904 Act. This rule applies still today. Since this section only governs formal validity of marriage, it leaves open what requirements apply to substantive validity. However, these rules on formal ¹³⁷ validity, according to established understanding, cover substantive validity as well. ¹³⁸ Nevertheless, before the amendments of 2004 there were no explicit rules regulating conditions as to substance of foreign marriage apart from the public policy-reservation, and there exist no such provisions today. Through the amendments of 2004 this shortcoming was partly amended by adding that if at least one of the parties of the

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Government Bill, Prop. 2003/04:48, pp. 16–17.

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Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, IPRax, 2020, p. 268.

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Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, p. 268.

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