Marriage and divorce legislation in Sweden

Front matter

Legislation in

Sweden

BY

Chapter One The Entrance Into Marriage

Betrothal ^^^^ng peoples of Teutonic origin marriage was originally a family affair, arranged betweeen the guardian of the woman and her suitor. She herself had no legal power to choose her future husband but had to submit to the judgment of her relatives. The Christian Church, -with its conception of marriage as a union based on mutual agreement, vigorously opposed this procedure and succeeded in imposing its ideals on the nations it conquered. In its desire to supervise the private life of its members, the Church gradually gained control of the entire marriage ceremony. At first satisfied to bless the union after the civil marriage had taken place, it soon demanded that the ceremony be performed before the church door and in the presence of the priest ; it was, then, only a matter of time until the ceremony was shifted to the church proper. The importance of ecclesiastical control of the marriage became still greater when marriage was made a sacrament. Complete power over the ceremony and its prerequisites was placed in the ecclesiastical authorities, and the Canon Law, which regulated this controlling power, received a recognition as universal as the Church itself.

The Canon Law was not entirely uninfluenced by the secular concepts of the countries it came to dominate. The inevitable conflict between it and the Civil Law, in matters affecting both State and Church, left both legal systems changed. The civil law betrothal received a place in the Canon Law, even though it was considered inferior to the ecclesiastical betrothal, which took place immediately before the ceremony and provided no betrothal period. The Church came to regard the civil law betrothal with a great deal of interest because of the very reason that it provided an interval, which facilitated the investigation of the disabilities to marriage.^

^Lagberedningens forslag till revision av giftermdlsbalkcn och vissa dclar av drvdabalken, I., p. 76.

g.- J. . * »• r ■ Marriage and Divorce

Influenced by the teaching-s of the Church, the Civil Lawcame to demand the woman's consent to the marriage. The result was the appearance of the so called "free" marriage, the significant feature of which was the absence of the guardian. The custom soon arose of having a "chosen guardian" give the woman away and this guardian was selected by the woman. Since the ritual, which had in the course of time developed, practically demanded that this person be able to read, it is probable that the priest, who used to be present to bless the union, was asked to officiate in this new capacity. From this it was but a short step to his taking charge of the entire ceremony, which resulted in its transference to the interior of the church, a development, which seems to have taken place at least in Anglo-Saxon countries. -

In the Swedish laws of the early Middle Ages, there were still traces of a marriage by purchase, which must have been common long before. In principle, however, this custom had already disappeared by the time the legal concepts took definite form in the Provincial Laws.^ These laws held as necessary elements of a legal marriage, betrothal and a wedding, followed by cohabitation. The betrothal ceremony was preceded by negotiations of a financial nature. The suitor must show that he was able to support his wife and sometimes he must guarantee this support in the betrothal contract.* The dowry was also decided upon. It consisted in money, land, or personal property given to the woman by her father; if the marriage was disrupted, it was to be returned to her, her husband controlling it during the marriage.

^Howard, G. E., A History of Matrimonial Institutions, vol. I, p. 276 et seq.

^At the dawn of the historical era, Sweden was divided into a great many shires or provinces, "landskap", inhabited by closely related peoples, governed by laws of their own making. These popular laws served to guide the procedure of the assemblies, where justice was dispensed. Of the nine or more Provincial Laws, dating back to the 12th or the 13th century, the Vastgota and Ostgota Laws are the oldest. Increased facilities of communication and the unification of the provinces into one kingdom made it possible for King Magnus Eriksson, in the middle of the 14th century, to appoint a commission to codify the laws into a general law for the realm. The result was Magnus Eriksson's Country Law, later followed by his Borough Law. The latter governed the towns; the former, the countryside. The Borough Law remained in force until both Town and Country got a common code in 1734. The Country Law was, in 1442, supplanted by Christopher's Country I.aw.

^Williams, M. W., Social Scandinavia in the Viking Age, p. 92.

The morning gift was also decided upon at this time. It was to be given by the man to the woman on the morning after the wedding night and usually consisted of money or land, sometimes reaching a considerable value. The suitor was by law required to bind the bargain by gifts to the guardian or other relatives of the woman. These gifts were often symbolical in nature and represented the price of the transfer of the guardianship of the woman. ^

As for the betrothal ceremony proper, it was to be performed in the presence of witnesses. The father or the guardian of the woman placed her hand in that of the groom and affianced her to him, and those present declared that they had been witnesses to the betrothal. This act had serious legal consequences. It gave the man the right to have his bethrothed delivered to him when he claimed her. If the guardian failed to live up to his agreement, the suitor had the right to appeal to the civil authorities for aid. The loss of the gifts given to the woman or her relatives and, sometimes, a small fine were, however, the only punishment for the suitor, if he changed his mind.

The wedding was the act which signified that the marriage was completed. According to the Provincial Laws, not only a formal ceremony but cohabitation subsequent to such ceremony gave rise to a union with full legal status, a concept which survived long after the law had been changed and was recognized even in the code of 1734, which was not displaced until the law of 191 5 was passed.

The influence of the Church is reflected in the Provincial Laws. By the time of their codification, the "purchase money" had already lost its character as such and consisted largely of gifts to the woman herself instead of to her guardian or other relatives.^ Many of these laws also prohibited a guardian from arranging a marriage for his daughter or ward, without her consent. In 1216, the Church, in an attempt to control the ever increasing number of clandestine marriages, extended to Sweden an order requiring that no

^Their name, the miindr, is still found in the word iormyndare, guardian.

*^The Country and Borough Laws show this influence even stronger, specifying no gifts to be made to either the guardian or other relatives of the woman.

marriage be celebrated by its servants until banns had been published. The unions of persons who failed to comply with this order were declared illicit; they were not invalid. The Provincial Laws seem to have taken this order into account, since many of them stipulate publication without making it obligatory. It was probably regarded as a necessary prerequisite to the religious ceremony, which was mentioned in all the laws with the exception of the older Vastgota Law. The practise of the Church undoubtedly became accepted until most people had banns published and a religious ceremony performed.

rp. The Reformation, which received official

. sanction in 1527, had but a slight effect on

Reformation marriage legislation. The problem of

clandestine marriages had made Luther emphasize the importance of ecclesiastical betrothal as the only true betrothal ; it should lead to an immediate marriage and should not be entered into without the consent of the parents of the candidates. He believed that all secret betrothals should be regarded as invalid, except possibly in cases when physical union had taken place. The reformers, on the other hand, did not claim that a religious ceremony was absolutely necessary for the consummation of a valid marriage. Of course, the true Christian should take care that his marriage was duly published and entered into at the church door and at the altar, but these were not legal rules, only recommendations and therefore unenforceable. It was, consequently, the betrothal, which came to be regarded as the true marriage by the Evangelical churches, a union, which only received its confirmation by a religious ceremony, a concept quite in harmony with the opinion expressed by Luther that, "This is a marriage ; I am yours and you are mine."^

As far as the institution of marriage is concerned, the new faith received its first expression in Sweden in the Ordinance of Vasteras, 1527. This Ordinance read in parts: "If a man cohabits with his betrothed, he shall not be fined, since there is between them a right marriage before God, neither shall he divorce her. Should he desert her, the law shall punish him."® The Church Constitution of 1572 con-

'Quoted by LagberedningeHS forslag etc., I, p. 79. ^Ibid., p. 80.

tained a similar stipulation. "Where betrothal has taken place in the presence of witnesses and with gifts, and physical union follows, this shall be regarded as right and proper before God, although legal (i. e. ecclesiastical) betrothal and a religious ceremony have not followed.""* What a remarkable likeness between this post-Reformation attitude and that expressed in the old civil laws, which regarded betrothal and subsequent cohabitation as the only absolutely necessary elements of a valid marriage. The following extract from the Constitution may also be of interest because it reflects the attitude of the Reformers : "No secret contract of marriage shall be valid, in the case of a girl, who betroths herself without the consent of her parents or guardian, unless they are later willing to recognize the betrothal, an action which peradventure must follow, if cohabitation has taken place; for children are, according to the command of God, subject to their parents in this as in all matters. However, parents and guardians shall not, in this or other matters, act with force or compulsion, for rarely does a good marriage result, when one is forced to take some one for whom neither love nor desire exists."^"

The Church Constitution also tried to carry out the recommendations of the Reformers by attempting to substitute for the old civil betrothal an ecclesiastical one. The latter was to take place at the church door or in the vestry just before the religious ceremony was celebrated and was to replace the old fashioned custom of repeating the betrothal vows at the church door, in the presence of the priest.^^ The Constitution was frankly contemptuous of "betrothals that farmers make"'- and stressed the importance of the ecclesiastical betrothal, which should be entered into regardless of the former. This attempt to change the practise of centuries failed and, in 1611, the clergy capitulated. Agreeing that the civil betrothal was to be considered valid, they simply advised all to have their betrothals executed in church before the congregation.^^

■•>Jbid.

^See page 30.

^^Lacjberedningens forslag etc., I, p. 81.

The influence of the Reformation left prac- TJic hcclesiastical tj^ally no trace in the Ecclesiastical Law Lazi' of 1686. °^ 1686. Almost the only evidence of it

was an order to the ministers to warn all people of the dangers of entering "conditional or lengthy betrothals." The law contained no rule regarding ministerial assistance at the betrothal but admonished the people to inform the minister about it in good season that he might "warn them of disabilities, which might be obstacles in their way."^* Luther's emphasis on parental consent is reflected in the stipulation that not only the woman but also the man should have the consent of "those concerned" before the betrothal be entered into. Refusal to give such consent could be tested and set aside by the court, if not justified.

As to the form of the betrothal, the law required that it be executed only in the presence of "two honest and responsible male witnesses, one for each side, in addition to the parents or the guardian. "^^ It was considered performed when

"both say yes, without force or fear, and shake hands

even though there be no gifts given. "^"^ It had the nature of a contract of marriage, equally binding the man and the woman. The consummation of the marriage by a religious ceremony was, of course, expected, and the law warned the betrothed against a premature cohabitation. But.... a legal and valid marriage could be entered into without this ceremony. Physical union, subsequent to the betrothal, was regarded as establishing a marriage, which should be completed by a religious ceremony, but the validity of which was in no way impaired because the candidates failed to ask the Church to bless the union. If, in such cases, the man re-

^^Ibid. Although the law seems to have required witnesses for a valid betrothal, practise came to hold written and even secretly performed betrothals valid, judging from the following Royal Resolution of Oct. 22, 1723. "Betrothals, which take place after fair and mature thought and the consent of those concerned and not from fear or force, nor due to drunkenness, frivolity, or such things, should not be regarded as incomplete, because no witnesses were present. Personal admission and written declarations, which have been prompted as above mentioned, should be as valid testimony as legal witnesses." Ibid., pp. 83-84.

^^Ibid., p. 84. Cf Williams, M. W., op. cit., p. 94. "Betrothal

was of the utmost importance, for no marriage was considered legal unless preceded by a formally witnessed agreement regarding the dower and the mundr, in addition to a plighting of troth."

fused to grant the woman's wish to have a ceremony performed, the diocesan chapter^' could declare her his wife. Should he be dissatisfied with this action, he could appeal to the civil courts.

There was another type of union, which had as great legal force as the betrothal, namely, cohabitation after promise of marriage. "If a man tempt a girl to cohabit with him after promising to marry her, he shall, according to God's command^**, be duty bound to marry her and not desert her. If he deny the promise and cannot be persuaded, he shall be referred to the civil courts, there to free himself. If he admit his promise, yet desert her, she shall enjoy the same rights as a betrothed woman and he shall be punished as one, who without cause forsakes his betrothed. But, if he has not reached majority, being under the tutelage of parents or guardian, he shall not be forced to the marriage without his parents' consent."^** The usual, though by no means the only interpretation of this paragraph, seems to have granted the woman the right to have the marriage completed by a religious ceremony. Refusal by the man to comply with her wish, caused her to be declared his wife ; he might even be given a prison sentence.

The Civil Code According to the Code of 1734, a betrothal r -ty^A could take place in two ways; either by

•^ oral agreement in the presence of witnesses,

two on the woman's side and two on the man's ; or, in writing, by contract, signed by the man and the woman, or by separately written promises duly exchanged.

In the very first chapter of the law, we find the stipulation that "if a man desire to establish a household, he shall ask the woman's guardian for her and not forcibly take her nor secretly entice her away."-'* In spite of this, the betrothal

I'ln conjunction with the Bishop, these chapters conduct the reHgious affairs of their respective dioceses. They are composed of the dean of the cathedral parish and the majority of the professorial lecturers at the state college of the cathedral town. (In Uppsala and Lund, the university professors of theolog}^ take the place of the "lectors", and in Gothenburg, two rectors of the city churches are members, in addition). Although Stockholm belongs to the Archdiocese, it has a chapter of its own, headed by the rector of "Storkyrkan", who bears the title of "pastor primarius". The Court and Garrison parishes have, besides, a chapter of their own.

^^Exodics, 22:16; Deuteronomy, 22:28-9,

^^Lagheredningens for slag etc., I, p. 87.

''\Sveriges Rikcs Lag. Giftenndlsbalken, chapter i, paragraph i.

seems to have been largely a matter of mutual agreement, properly witnessed. The Code appears to have been inspired to some extent by the old Provincial Laws. The number of witnesses, which the Ecclesiastical Code placed at two, was doubled in accordance with the old civil law stipulation.-' Again, the suitor was urged to give the guardian due notice of the time of the wedding. Refusal of the latter to deliver the bride, gave the bridegroom a right to ask the civil authorities for assistance. All of which indicates that, in form if not in spirit, the Code revived the old Teutonic betrothal in which the woman played a passive role.

The Canon law concept of free mutual agreement was also recognized. \'alidity was given to betrothal by a written contract, signed by the candidates, or by written promises. Secrecy, however, was not favored. Mere promises of marriage or secret agreements were not considered binding unless they were followed by cohabitation, and even then a religious ceremony should complete the marriage. If publication of banns had been applied for, secret agreements were recognized and a betrothal was looked upon as existing although the time and the manner of its actual beginning were unknown.

The importance of the betrothal lay primarily in the fact that it formed an efifective bar to another union and had to be dissolved in a specific manner. If both the man and the woman desired its dissolution, they could apply to the diocesan chapter, which prom])tly granted their wishes. But, if only one of them desired it, court action became necessary. Should the court, in its investigation of the causes for the petition, find that the petitioner was chiefly to blame, the dissolution of the betrothal would be decreed but the court might at the same time prohibit the petitioner to marry as long as the other lived, remained unmarried, or remained unreconciled.-- This prohibition became of little or no value, since the legal rights of the injured betrothed were rarely exercised.

With the law of 1734 the religious ceremony came into

2i"Now a man wishes to bind a woman's troth ; then shall her guardian be with her and four witnesses, two on the man's and two on the woman's side. A betrothal is then legal." Quoted by Lagberedningens for slag etc., I, p. 91.

Legislation in Sivcdcn 15

its own. No marriage with full legal status was recognized unless it was blessed by the Church.-^ There were, however, unions still formed without that blessing, unions based on the old custom, which regarded betrothal as the only ceremony necessary for a legal marriage. The drafters of the Code faced the task of fixing the status of these unions, which were no longer considered proper. They found it necessary to create a kind of inferior marriage, an "incomplete marriage", a rather curious institution, which has no exact counterpart in modern laws.

An incomplete marriage arose, when physical union followed upon a betrothal or a promise of marriage. "If the agreement had the nature of a betrothal, a marriage existed as soon as physical union had taken place, even though the legal effects were materially strengthened, in case one of the betrothed asked the court to be declared the other's husband or wife, if the latter was unwilling to have a religious ceremony performed. Cohabitation after a promise of marriage gave rise to an incomplete marriage only if the union, on the woman's petition, was given legal status by court decree, or if the man 'churched'''* the woman as his wife or betrothed."-^ There were, consequently, four distinct types of incomplete marriages. As far as the woman was concerned, the important effect of this kind of union was that she gained marital property rights in the man's estate.

Court practise differed greatly with regards to unions arising from cohabitation after promise of marriage. Gradually the custom arose of declaring the promise binding and giving the woman marital property rights in the man's property, instead of declaring her his wife. This arrangement was not satisfactory to the clergy, since it did not force a

-Hi is interesting to note that although the ceremony had now become the legal foundation for a marriage, thereby displacing the betrothal, the latter nevertheless formed a bar to another marriage.

2*A ceremony, the origin of which goes back to the days of purification mentioned in Leviticus. The teachers of the Church held that a woman, who had given birth to a child, should remain at home for six weeks and then appear in church to give thanks to the Lord. This custom gained in force in the Christian Church and gave rise to the "churching." The Ecclesiastical Law of 1686 prescribed a six-week period, which was, by Royal proclamation of 1866, cut to four weeks "or earlier". Refusal by the woman to follow this rule led to her being requested by her pastor to comply with the demands of good Christian order and custom. In practise she was given free decision. Nordisk Familjebok, article on Kyrkotagning.

marriage. In 1755 a decree was issued, declaring in substance that, when the court had pronounced the promise binding and the couple could not be induced by their pastor to have a religious ceremony performed, they were to be reported to the diocesan chapter, which warned them not to oppose their pastor's wishes. If these warnings failed, the matter was to be referred to the court and if no cause could be shown why the marriage should not take place, the court was to order its performance on pain of imprisonment. If this did not succeed in convincing the couple, the diocesan chapter was to try again its powers of persuasion and after that the government was given an opportunity to solve the problem. Its action was not suggested by the decree.-"

It was not in agreement with the spirit of the age to use compulsory means to establish families and in 1810, upon the request of the Riksdag, the above decree was revoked. Later an order was issued, according to which a couple, which refused to have the ceremony performed when the court had declared the promise binding, was to be summoned before the cathedral chapter and requested to marry. If they refused and both desired the dissolution of their betrothal, the chapter was to issue a letter of dissolution ; in other cases the matter was referred to the King for decision. Neither the rights of the woman nor those of the children were to 'be affected by the dissolution.-^

Like betrothal, all the incomplete marriages formed a bar to another marriage and had to be dissolved before the latter could take place. Although the original purpose of this singular institution was to force the completion of a marriage by a religious ceremony, which would sanctify the relationship, this purpose was displaced by the aim of securing economic protection for the injured person, usually the woman. "According to the letter of the law. these

unions were real marriages, but in reality they filled

functions quite different from those of forming the legal basis for marital life. Their real purpose was to provide opportunity for redress for the one, who had been deserted by her (or his) lover, although the relationship had become highly intimate."-*

^^Lagberedningcns forslag etc., I, p. loi. ^''Ihid., p. 102. ^^Ibid., pp. Iio-lil.

Impediments to '^^ ^^^^^ *^^ welfare of the group all peo- . pies have found it necessary to regulate

arn ge. ^.j^^ entrance into marriage for the purpose

of eliminating those, who might by their union harm the group. Among primitive peoples, relationship, either actual or fictitious, has always proved an important bar to marriage and the Canon Law, which contained the legal concepts of the Church Fathers and their successors, forbade the marriage of persons physically related to the seventh degree, as well as those spiritually related, such as godfather and godchild, baptizer and baptized, etc. Marriages between those in holy orders or under solemn vows, as well as marriages between Christians and unbelievers were held void by the Canon Law, which also considered adultery, adoption, and alifinity impediments to marriage. . The Ecclesiastical Law of 1686 prohibited

^ ■ the marriage of person below legal and

mature age, but this age was not stipulated nor had any previous law settled it. It is to be presumed that the man's age of majority, fifteen, was meant. The Commission, which drafted the law of 1734, planned to raise this age. The various preliminary drafts contained suggestions of placing it at eighteen or twenty-one, the marriageable age and the age of majority being made to coincide each time. In 1721, a Royal proclamation placed the man's age of majority at twenty-one and this age was incorporated in the law of 1734, although an earlier marriage could be permitted by Royal dispensation.^** In 1853, the Riksdag made an attempt to have the man's marriageable age raised to twenty-five. It failed on the argument that his marriageable age would then be much higher than his age of majority, an undesirable feature.^** In 1892, the woman's marriageable age was raised from fifteen to seventeen.^^ Strange to say, the inconsistency, which the

29During the decades immediately following the passage of the law, several changes were made to permit the sons of the peasants to marry at an earlier age without dispensation, but in 1841 the law was restored to its original form in this respect.

^^Lagberedningens forslag etc., I, p. 134.

^^The female Laplanders were not included in this act and could therefore marry at fifteen. The failure to raise their age as well seems not to have been based on any belief that they reached maturity earlier, but simply on the fact that the conditions of life among these nomads made a lower age desirable. In 1745, the male Laplanders received permission to marry at seventeen. Today there are about seven thousand Laplanders in Sweden. Ibid., pp. 139-140.

Riksdag of 1853 fought, of having the man's age of majority and his marriageable age differ, did not arouse any criticism, when the woman's marriageable age remained at seventeen, while her age of majority was placed higher.

„ ,. , . The position of the guardian in early Scan-

Luaramnslup. ,• • • ^ i 1 11 'r

' dinavian society has already been discuss-

ed. It was he who disposed of his daughter's or ward's hand to her suitor and although the woman was later given power of independent choice, the guardian remained her representative. It is true that the law of 1734 required the man, who wished "to establish a household," to ask "the woman's guardian for her." but it also stipulated that her consent was necessary. The place of the guardian came to be less important, particularly after 1858, when an unmarried woman became independent at twenty-five. Below that age, she must have her guardian's consent, however, a situation, which might easily be made difficult, due to the artificial "order of guardianship", which preserved within the male line of the family the right to give the woman in marriage. As a result the deciding power often came to rest in the hands of distant, sometimes unknown relatives.""

pi • ] J The law of 1734 contained no express stipu-

... , .. lation against the marriage of persons af-

fected with certain diseases or defects. In its discussion of betrothal, however, it gave some intimation of its attitude toward such unions. As causes for the dissolution of betrothals, the law restated the paragraphs of the Ecclesiastical Law, which permitted such dissolution on account of "incurable and infectious diseases, from

32"A father shall give away his daughter in marriage, and her mother may give him advice in the matter. If her father is dead, her mother shall take counsel with her blood relations. If neither father nor mother is living, the guardian appointed by her father, either orally or in writing, or the one appointed by her mother in counsel with her relatives, shall give her away. . . If they are not found, the following shall give her away, in the order given: full brother; paternal half brother; maternal half brother; all of these shall take the advice of her grandfathers. If neither full nor half brother lives, then parental grandfather; maternal grandfather; paternal uncle; or, maternal uncle. If they are not found, then the one closest related to her on her father's or mother's side. Are the\' equally close to her in relationship, he who is related to her on her father's side, man and not woman, shall give her away, after having taken counsel with her trustee and her nearest relatives on her mother's side. If no male relatives are living, her trustee shall give her away." Paragraphs 2 and 3, chapter i, Giftcrmdlsbalken, Svcriges Rikcs Lag.

Legislation in Sivcden 19

which one of the betrothed suffered before the betrothal or later acquired, such as leprosy, epilepsy, 'senselessness', frenzy, pocks from loose living, and horrible and great defects and blemishes, which would keep a person from working at his trade or occupation. "^^ The Ecclesiastical Law also stated that if, in spite of such disease or defect, the betrothed desired to remain together, permission should be given them to do so "except in the case of infectious diseases, when a sufficient time shall be set, during which attempts shall be made to cure the disease.""* If no cure resulted, the betrothal was to be dissolved. Incurable infectious diseases, consequently, were an unconditional impediment to the marriage of the diseased person, according to the Ecclesiastical Law of 1686.