Application and the basics of Norwegian family law

This article contains a brief overview of Norwegian family law, with emphasis on the economic relationship during marriage and in conjunction with separation and termination of marriage.  The overview also covers the economic relationship for common-law spouses (cohabitant).

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When may a case concerning family law be put forth before Norwegian courts?

The jurisdiction (power) of the Norwegian court in cases concerning family law, is generally based on the type of lawsuit that is brought before the court.

According to the Dispute Act section 4-3, international disputes may only be brought before Norwegian courts if the case has sufficiently strong connection to Norway. The connection would, as a main rule, be strong enough if the defendant lives in Norway, see the Dispute Act section4-4. Cases of matrimonial matters (marriage cases) can also be filed in Norway if the alternative conditions mentioned in the Marriage Act section30b have been met.

Spouses may also petition for public administration of an estate in the judicial district where the couple had their last common residence, if one of them still live in the district at the opening of public administration, see Administration of Estate Act section 8.

What is the difference between a petition for public administration of an estate and a lawsuit?

In public administration of estate, the court administers the division of assets. The court, except for the judicial district of Oslo, will normally appoint a trustee, usually an attorney. The trustee, or the court, will try to mediate in order to reach an amicable solution between the parties. If no agreement is reached, the matter must be settled by the court through so-called probate action. Probate action is relatively similar to a lawsuit, though there are some differences.

Public administration of an estate cannot be filed in cases of separate estate, in cases where the division of assets has already been decided upon and in cases between common-law spouses (unmarried couples).

If a lawsuit is filed, the court will settle the case. Lawsuit and probate action trigger lis pendens effects. A petition for public administration of estate, does not. Lis pendens means that proceedings concerning the same claim cannot be commenced in any other court unless the court in the country first seized has established lack of jurisdiction.

When does Norwegian family law apply to my case?

Choice of law depends on the claim that constitutes the lawsuit. Even if a Norwegian court is considered competent to rule upon the case, it does not necessarily mean that Norwegian law applies (lex fori).

If the claims involve division of assets, the choice of law would generally follow the domicile principle. The principle of domicile means that the first country where the couple lives after they are married will apply to the case at hand.

In cases of division of assets, there are, however, exceptions from the domicile principle. Whether or not those exceptions apply will have to be decided on a “case to case” basis. For the Nordic countries; Norway, Sweden, Denmark, Iceland and Finland, a special convention with regards to choice of law applies. Furthermore, if the couple has agreed on a prenuptial agreement / marriage settlement, the place where this has been set up or if it concerns choice of law, might influence the choice of law.

What are the basics of Norwegian family law concerning the economic relationship during marriage?

Marriage entails, as a general rule, no limitation of the right of a spouse to dispose of what he or she owns. Property acquired by one of the spouses becomes sole property while property acquired by both become common property (sameie).

According to case law, consideration shall be given to the work of a spouse in the home, for instance providing for the children, in the assessment of who has acquired property that has been used by the spouses in common and personally, such as common residence or ordinary household goods.

Marriage would furthermore create a regulation of estate (formuesordning) between the spouses. By default, when married the regulation of estate is joint property (felleseie), though couples can choose to deviate from that regulation through agreement of separate property (særeie). The regulation of an estate is mainly of significance during separation and divorce.

Certain transactions between the spouses, such as gifts that are not considered customary, require marriage settlements, cf. the Marriage Act section 50. The same applies to agreement upon separate estate and other regulations as laid out in the Marriage Act chapter 9.

Marriage does not make a spouse jointly responsible for the other spouse’s debt. A spouse may furthermore not contract a debt which affects the other spouse unless this is especially authorized. Joint responsibility would presuppose a legal basis, most commonly an agreement between the spouses.

What are the basics of Norwegian family law with regards to separation and divorce?

There is a difference between married couples and common law spouses with regards to separation and divorce. Married couples need to undergo a divorce process. Separation and divorce would furthermore dissolve the regulation of the estate between spouses (formuesordning).

The default regulation of an estate for married couples is joint property (felleseie). Married couples can nevertheless agree upon separate property (særeie) or a giver / deceased can decide that gift or inheritance is deemed as separate property.

Common law spouses do not have joint estate (formuesordning) and they do not need to undergo a divorce process. The dissolvement would mean that each party keeps his or her belongings and his or her debt. Co-owned property (sameie) such as real estate would have to be dissolved according to the Property Act (sameieloven).

What is joint property (felleseie)?

Where joint property is chosen as the regulation of an estate, the combined values between the married couple is to be divided 50 / 50. Before such division is made, each party has a right to perform a deduction of debts pursuant to the Marriage Act section 58. The rules of debt deduction are technical, especially if the spouse has values or belongings that are exempt from division, as mentioned below.

There are two exceptions to the general principle that joint property is to be divided equally:

Firstly, a spouse can make a claim of unequal division of value of assets if the claim meets the conditions in the Marriage Act section 59. Furthermore, certain properties can be exempt from division as laid out in the Marriage Act section 61. Examples are property for personal use, insurance benefits, private and public pension schemes and items that have been acquired especially for use by the children.

What is unequal division value of assets pursuant to Marriage Act section 59?

As laid out in the Marriage Act section 59 the values of assets that clearly can be traced back to means that one spouse had before the marriage was contracted, or later has acquired by inheritance or by a gift from a person other than his/her spouse, can be exempt from division, cf. the Marriage Act section 59.

Furthermore, If the right to withhold means pursuant to the first section will lead to an obviously unfair result, the claim for exemption might lapse entirely or partly. Lastly, if there are strong reasons for doing so, a spouse may be awarded the right to withhold values from division, even though the conditions mentioned above are met.

What does it mean that the couple has agreed upon separate property (særeie) as regulation of estate?

Spouses may through a marriage settlement (“prenup”) agree that all or part of what they own or later may acquire shall be exempt from division, and count as separate property. Such marriage settlement must be contracted in writing, with two witnesses and pursuant to conditions laid out in the Marriage Act section 54.

The property with its value is as a result exempt from division, and consequently not to be divided 50 / 50.

If a spouse, for instance through contribution to the support of family, by working or in some other way, significantly has helped to increase means that are separate property, he or she may be awarded compensation from the other spouse, cf. the Marriage Act section 73.

A marriage settlement may be cancelled or altered by means of a new marriage settlement or may be fully or partly annulled if it would affect one of the spouses unfairly, see the Marriage Act section 46 (1) and (2).

Lastly a donor or testator may provide that legacy or gift shall be conditional on being deemed separate property, cf. the Marriage Act section 48.

How shall property be divided during separation and divorce?

Pursuant to the Marriage Act section 66 each spouse has the right to retain items of property or rights which he or she fully, or to all intents and purposes, own, unless this would be obviously unfair under the circumstances.

Furthermore, a spouse may, regardless of ownership and given that there are special reasons for doing so, demand to take over real estate which has served as common residence unless the other spouse has an allodial right to the property, or it was acquired from his or her family by inheritance or gift, cf. the Marriage Act section 67. If the property is separate property, the threshold is higher, as there must be strong reasons for doing so, cf. the Marriage Act section 74.

Even though a spouse has the right to retain or take over property pursuant to the Marriage Act sections 66 or 67, the other spouse may demand that the value of the property is split 50 / 50 after reduction in debt, given that the regulation of the estate is joint property (felleseie).

When am I entitled to maintenance (alimony)?

As a general rule, the mutual obligations of spouses to support the family, including each other, cease upon separation of divorce. The same applies to cessation (end) of cohabitation without a separation or divorce.

If the ability and opportunity of a spouse to ensure adequate support has been reduced as a result of caring for children of the marriage or of the distribution of joint tasks during cohabitation, the other spouse may be ordered to pay maintenance.

In other cases, maintenance may only be ordered if there are special reasons for doing so.

The assessment of maintenance is to be assessed based on the need for maintenance of the person entitled to it, and the ability to pay of the person liable to pay maintenance. Maintenance is generally paid on a monthly basis and not as a lump sum and shall be determined for a limited period not exceeding three years, unless special reasons warrant a longer period.

Svein Steinfeld Jervell

Forfatter Svein Steinfeld Jervell

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