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

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.

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 Amendments of 2014 ...... 27 3.2.2.1 Recognition of Foreign Marriages ...... 27 3.2.3 Amendments of 2018 ...... 29 3.2.3.1 Non-Recognition in Respect of All Child Marriages ...... 29 3.2.3.2 The ‘Escape Clause’ ...... 32 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 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.1 Van Coller goes as far as arguing that we should not even speak of child marriage as a concept because it confuses what ‘marriage’ with a child really ought to be considered as – a crime.2 Instead, he argues, we ought to call the phenomenon ‘paedogamy’, deriving from the words ‘paedo’ and ‘gamy’, the former which we already use in other terms such a paedophilia!3 While perhaps an extreme 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

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

2 Van Coller, A., Child Marriage – Acceptance by Association, International Journal of Law, Policy and the Family, 2017, p. 364.

3 Van Coller, p. 364. 1 asylum in Sweden, bringing with it a growing number of married children.4 This very 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 Child5 states that for the purpose of the Convention a child 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 Marriage6 specifies no 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

4 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, Journal of International and Comparative Law, 2019, pp. 348–349.

5 Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49.

6 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Opened for 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. 2 on the Elimination of Discrimination Against Women,7 states that all necessary action, 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.8 Paragraph 36 of the UN Convention on the Elimination of 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.9 In the English case of Alhaji Mohamed v. Knott10 (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

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

8 Dethloff, N., Child Brides on the Move: Legal Responses to Cultural Clashes, International Journal of Law, Policy and the Family, 2017, p. 303.

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

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

11 Murphy, J., Rationality and Cultural Pluralism in the Non-Recognition of Foreign Marriages, International & Comparative Law Quarterly, 2000, p. 5, with reference to Deech, R., Immigrants and Family Law, New Law Journal 110, 1973, at 111. 3 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’.12 As 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

12 Zweigert, K., Kötz, H., An Introduction to Comparative Law, Clarendon Press, 1998, p. 3. 4 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.

5 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.13 As will be evident from chapter 4 on the laws of England and 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.15 The purpose with a legal dogmatic method 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.17 Instead there are different approaches the comparatist can choose between depending on, of course, the topic itself but also on the purpose of the comparison. In

13 Zweigert and Kötz, p. 202.

14 Zweigert and Kötz, pp. 202–203.

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

16 Kleineman, p. 21.

17 Örücü, E., Methodological Aspects of Comparative Law, European Journal of Law Reform, 2006, p. 30. 6 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.18 In more recent comparative law theory, Samuel offers 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.20 In 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.21 Microcomparison on the other hand revolves around specific legal institutions or problems, i.e. the rules used to solve actual individual problems.22 Most of the work within comparative law is carried out at the level of microcomparison.23 In this thesis the latter category –

18 Zweigert and Kötz, p. 2.

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

20 Zweigert and Kötz, pp. 4–5.

21 Zweigert and Kötz, p. 4.

22 Zweigert and Kötz, p. 5.

23 Örücü, p. 32. 7 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.24 An idea can emerge from the dissatisfaction with a solution, or the lack thereof, with a problem in one’s own national legal system.25 The search for a solution 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.26 It may 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.27 The latest 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.28 Here one will in fact find, according to Zweigert and Kötz, that different legal systems give the same or very similar solutions to certain problems.29 Zweigert and Kötz emphasise, 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

24 Zweigert and Kötz, p. 34.

25 Zweigert and Kötz, p. 34.

26 Zweigert and Kötz, p. 34.

27 Zweigert and Kötz, p. 34.

28 Zweigert and Kötz, pp. 36–37.

29 Zweigert and Kötz, p. 39.

30 Zweigert and Kötz, p. 39. 8 The third step is the choice of which legal systems to compare.31 The idea of a 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?).32 The basic methodological principle within comparative law, and also the one that will be applied in this thesis, is the principle of functionality.33 Örücü states that at a level of microcomparison it is ‘widely accepted that the ‘true basis’ of comparative law is that of functional equivalence’.34 It is functionalism that determines the choice of laws to compare as well as the scope of the undertaking.35 If one seeks to 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.36 This approach answers the following question: Which institutions in system B performs an equivalent function to the one under survey in system A?37 She closer describes the method as

31 Zweigert and Kötz, pp. 40–41.

32 Samuel, pp. 21–22.

33 Zweigert and Kötz, p. 34.

34 Örücü, p. 32.

35 Zweigert and Kötz, p. 34.

36 Örücü, p. 33.

37 Örücü, p. 33. 9 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’.38 Rules in Swedish law governing child marriage concluded abroad is to be 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.39 The reports should in this stage be without any critical evaluation and should thus merely be juxtaposed.40 This is found in chapters 2, 3 and 4. It is only when the reader is familiar 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 6.42 This evaluation can lead to different conclusions; the conclusion does not 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.

38 Örücü, pp. 33–34.

39 Zweigert and Kötz, p. 43.

40 Zweigert and Kötz, p. 43.

41 Zweigert and Kötz, pp. 43–44.

42 Zweigert and Kötz, pp. 46–47.

43 Zweigert and Kötz, p. 47.

44 Zweigert and Kötz, p. 47. 10 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.45 Bogdan refers to such relations as a legal relationship with an

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

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

46 Bogdan, Svensk internationell privat- och processrätt, p. 18. 11 cases as well.47 However, here lies ‘the core’ of private international law, as Bogdan puts it, for it must be settled which country’s law to apply.48 This is done by choice-of- 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,49 domicile as it 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.50 The number of cases where a person has more than one nationality is great, and it will probably keep growing as a consequence of the amount of people moving across borders.

47 Bogdan, Svensk internationell privat- och processrätt, p. 19.

48 Bogdan, Svensk internationell privat- och processrätt, p. 19.

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

50 Bogdan, Svensk internationell privat- och processrätt, p. 139. 12 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.51 The 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.52 As will be evident from the following chapter, habitual residence together 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.53 Bogdan explains that there 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.54 The first requisite, he continues, 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.55 The second requisite, the subjective one, is that the person must have the intent to remain in the new country.56 The intent must not be to remain forever or indefinite, but it should at least be for a very long period of time.57 Even though the requisite is subjective, statements from the individual him- or herself must not be decisive as to whether a new habitual residence has been acquired.58 However, a person’s intent is presumed to be the same as

51 Bogdan, Svensk internationell privat- och processrätt, p. 131.

52 Bogdan, Svensk internationell privat- och processrätt, p. 131.

53 Chapter 7 § 2 in the 1904 Act: ‘Den som är bosatt i viss stat anses vid tillämpning av denna lag ha hemvist där, om bosättningen med hänsyn till vistelsens varaktighet och omständigheterna i övrigt måste anses stadigvarande’.

54 Bogdan, Svensk internationell privat- och processrätt, p. 134.

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

56 Bogdan, Svensk internationell privat- och processrätt, p. 135.

57 Bogdan, Svensk internationell privat- och processrätt, p. 135.

58 Bogdan, Svensk internationell privat- och processrätt, p. 135. 13 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.60 According to Bogdan, a person who moves to a country with the intent to reside there permanently can acquire habitual residence from day one.61 As an example, he explains that a quota refugee, arriving in Sweden in organised forms, may acquire habitual residence from day one.62 He 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.64 One such matter is the essential validity of marriage,65 capacity to marry being a matter of 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

59 Bogdan, Svensk internationell privat- och processrätt, p. 135.

60 Bogdan, Svensk internationell privat- och processrätt, p. 135.

61 Bogdan, Svensk internationell privat- och processrätt, p. 135.

62 Bogdan, Svensk internationell privat- och processrätt, p. 135.

63 Bogdan, Svensk internationell privat- och processrätt, p. 135.

64 Cheshire and North, p. 145.

65 Cheshire and North, p. 145.

66 Cheshire and North, p. 146. 14 made effective by the assignment of domicile of origin to everyone at birth.67 The 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.68 The third rule is that domicile signifies a connection with the law of a territory. In other words domicile does not necessitate a system that prescribes identical rules for all groups of persons.69 Such a system could for example be a system that allows different legal rules depending on religion or caste – it is still the law of the territory that governs each person domiciled there.70 As a fourth general rule there is a 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.71 The last 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).

67 Cheshire and North, p. 147.

68 Cheshire and North, p. 147.

69 Cheshire and North, p. 147.

70 Cheshire and North, pp. 147–148.

71 Cheshire and North, p. 148.

72 Cheshire and North, p. 148.

73 Cheshire and North, p. 145. 15 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.74 Domicile of choice merely supersedes domicile of origin, but it never 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.76 Established residence with the intention to remain there permanently must be proven.77 While the two criteria must concur, there 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.79 In this way residence and intention are inter-related.80 Although the length 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.81 Time is not a sole 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,83 Lord Westbury stated that the intention should be to reside permanently, by which is meant not temporary, or,

74 Cheshire and North, p. 163.

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

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

77 Cheshire and North, p. 148.

78 Cheshire and North, p. 149.

79 Cheshire and North, p. 149.

80 Cheshire and North, p. 149.

81 Cheshire and North, p. 149.

82 Cheshire and North, p. 149.

83 Udny v. Udny, (1866-69) L.R. 1 Sc. 441 (1869). 16 for an unlimited time.84 Crawford and Carruthers explain that such an intention need not, however, be irrevocable, because ‘everlasting intention cannot reasonably be required of anybody’.85 The question of whether a person has fulfilled the requisite of intention is also, just like the requisite of residence, one of facts.86 However, the 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.89 However, conduct is given greater 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.91 However, 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.92 This, 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.93 The domicile of origin will remain until clearly superseded.94 This is not to say that the requisite of

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

85 Crawford and Carruthers, p. 98.

86 Cheshire and North, p. 155.

87 Cheshire and North, p. 155.

88 Cheshire and North, p. 155.

89 Cheshire and North, p. 156.

90 Cheshire and North, p. 156.

91 Cheshire and North, p. 158.

92 Cheshire and North, p. 158.

93 Cheshire and North, p. 158.

94 Crawford and Carruthers, p. 105. 17 intention cannot be formed subsequently and, if proven, the acquisition of domicile of choice is possible.95 This could be the case when the stay in the country of refuge 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,99 in which a man with domicile of origin in France 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

95 Cheshire and North, p. 158.

96 Cheshire and North, p. 158.

97 Crawford and Carruthers, p. 105.

98 Crawford and Carruthers, p. 105.

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

100 Crawford and Carruthers, p. 98. 18 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.101 Habitual residence is 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.102 In order to establish habitual residence there must be 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.104 In the case of AR v. RN105 two children 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.106 This, Cheshire and North continues, is consistent with the 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

101 Cheshire and North, p. 172.

102 Cheshire and North, p. 175.

103 Cheshire and North, p. 175.

104 Cheshire and North, p. 176.

105 AR v. RN [2015] UKSC 35.

106 AR v. RN [2015] UKSC 35.

107 Cheshire and North, p. 179. 19 whether habitual residence has been established.108 A person can be habitually resident 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.110 They continue by explaining that the 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.111 As to illustrate their point, in the case of an Englishman working abroad on a 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.113 How a marriage would affect the young person’s development, family life, education and social circumstances as well as the person’s age, the opinions

108 Cheshire and North, p. 180.

109 Cheshire and North, p. 181.

110 Cheshire and North, p. 172.

111 Cheshire and North, p. 172.

112 Cheshire and North, p. 172.

113 Chapter 2 § 1 Marriage Code (1987:230) in its wording before 2014. 20 of legal guardians and pregnancy were all factors that were to be considered before granting the exemption.114 In connection with a law amendment carried out in 2004, it 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.115 In other words, minority protects the child from too early 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 18.118 The age limit of 18 still applies today and is without 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.119 Together with the Marriage Code this legislation has during the past 15 years been subject to a number of

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

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

116 Government Bill, Prop. 2003/04:48, p. 22.

117 Government Bill, Prop. 2003/04:48, p. 22.

118 Government Official Report, SOU 2012:35, Increased Protection Against Forced Marriages and Child Marriages, p. 58.

119 Bogdan, M., Maunsback, U., Private International Law in Sweden, Kluwer Law International B.V., 2020, p. 97. 21 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.120 The 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.121 The law reform of 2004 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).122 The prevalence of the principle of nationality in Swedish 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,123 a clause applicable still today when the 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

120 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, För barns bästa, Iustus Förlag AB, 2017, p. 199.

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

122 Chapter 1 § 1 Act (1904:26 s. 1) on Certain International Legal Relationships on Marriage and Guardianship in its wording prior to the amendments of 2004.

123 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 349. 22 required permission by a competent Swedish authority.124 This meant that a child of foreign nationality and 15 years of age could marry in Sweden.125 Subsequent to the 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.126 But as mobility across borders 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.128 Another reason for the abandonment of the principle of nationality was the fact that Swedish and foreign nationals were treated differently which was principally considered inappropriate.129 Furthermore, it was argued that the 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.130 In practice Swedish and 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.131 Habitual residence, which by then had become the most important connecting factor in private international law, was an alternative, but it was argued in

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

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

126 Government Bill, Prop. 2003/04:48, p. 15.

127 Government Bill, Prop. 2003/04:48, p. 15.

128 Government Bill, Prop. 2003/04:48, p. 15.

129 Government Bill, Prop. 2003/04:48, p. 15.

130 Government Bill, Prop. 2003/04:48, p. 15.

131 Government Bill, Prop. 2003/04:48, p. 16. 23 the Government Bill that the disadvantages were more or less the same as with the principle of nationality.132 Namely, it did not cater to the wish that Swedish authorities should not contribute to non-desirable marriages.133 Habitual residence as a connecting 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.134 The alternative best suited in relation to the aim with the amendment 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.136 In respect of foreign marriages, the main rule prior 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.137 However, these rules on formal 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

132 Government Bill, Prop. 2003/04:48, p. 16.

133 Government Bill, Prop. 2003/04:48, p. 16.

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

135 Government Bill, Prop. 2003/04:48, p. 17.

136 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 350.

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

138 Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, p. 268. 24 marriage had a connection to Sweden through citizenship or habitual residence, the connecting factors mentioned in section 2.2, at the time of the entering of the marriage, it would not be recognised if it was in conflict with Swedish marriage impediments. The reasons behind the amendment was said to be changed values as to the significance of aforementioned impediments.139 Namely, it was argued that these impediments protected fundamental values and that the non-recognition of marriages concluded in conflict with these impediments is a way of protecting those values, for example non-recognition of child marriage,140 something the rule of non-recognition was primarily directed at.141 Through the law amendments of 2004, Swedish law governs the right to marry in Sweden, thereby adopting a lex fori approach.142 It was furthermore argued in the Government Bill that apart from being inconsequent, an order which allowed for child marriages to first be recognised only to later on be dissolved by force would not send a clear enough signal that such marriages are undesirable in

Sweden.143 In some situations, however, the results of non-recognition of marriages in conflict with the Swedish impediments would not be reasonable, and without the possibility to consider the circumstances in the individual case the consequences could be too far- reaching.144 For this reason exemptions from the main rule of non-recognition could be granted if, again, special reasons were at hand.145 Examples of circumstances constituting special reasons in regard of foreign marriages was if the couple did not have an especially strong connection to Sweden, together with the fact that they had conformed to being married or that they had children together.146 However, in practice the escape clause, which still applies today but with some modifications, is given a very restrictive interpretation, and attempts to invoke the clause have not been met with

139 Government Bill, Prop. 2003/04:48, p. 25.

140 Government Bill, Prop. 2003/04:48, p. 26.

141 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 350.

142 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 350.

143 Government Bill, Prop. 2003/04:48, p. 27.

144 Government Bill, Prop. 2003/04:48, p. 32.

145 Chapter 1 § 8 a Act (1904:26 s. 1) in its wording after the amendments of 2004.

146 Government Bill, Prop. 2003/04:48, p. 32. 25 success.147 Jänterä-Jareborg explains that Swedish courts have systematically abstained from using this exception in situations where the validity of a marriage is in question, even though the examples of circumstances that might constitute special reasons raised expectations of some flexibility.148 This is illustrated by a case from the Swedish Supreme Administrative Court from 2012 mentioned below. In some cases it would happen that a factor deeming a marriage to be in conflict with Swedish marriage impediments would have changed at the time for the assessment of the validity of the marriage, resulting in there no longer being an impediment. The fact that a person who entered into a marriage below the age of 18 at the time of the assessment had reached the age of 18 was, however, not considered to be sufficient for the marriage to be recognised.149 It was argued that the original shortage of one party being under age when the marriage was concluded still remains even though both parties later becomes of age.150 In other words, a child marriage will always be a child marriage regardless of the time elapsed. This statement came to be interpreted in a very restrictive manner. In the precedential case from the Swedish Supreme Administrative Court, HFD 2012 ref. 17, the Court ruled that a marriage where one party was below the age of 18 when marrying was not to be recognised, regardless of the fact that at the time of the judgment the girl had come of age and that she had only been ten days away from being 18 when she married. Neither the fact that she had later become pregnant and was 5 months along was enough for the Court to allow recognition of the marriage. As for the decision of whether to recognise a marriage or not, the reform provided no special procedure for marriage validation, leaving it to each competent authority to decide on the validity of a marriage.151 An authority deciding on the validity of a marriage, often in cases where the validity arises as an incidental question, will i.e. not be bound by a previous decision of another authority.152

147 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 351.

148 Jänterä-Jareborg, M., Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 ‘Refugee Crisis’, International and National Perspectives on Child and Family Law, Essays in Honor of Nigel Lowe, Intersentia Ltd, 2018, p. 273.

149 Government Bill, Prop. 2003/04:48, p. 32.

150 Government Bill, Prop. 2003/04:48, p. 32.

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

152 Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, p. 268. 26 3.2.2 Amendments of 2014 In terms of reference (kommittédirektiv) by the Swedish Ministry of Justice (Justitiedepartementet) a special investigator (särskild utredare) was in 2010 given the task to investigate and propose measures regarding i.a. child marriages.153 Two years later a major Government Official Report, SOU 2012:35, also mentioned above, was published.154 In the report the Commission of Inquiry in charge emphasised that the majority of child marriages are concluded by girls with foreign backgrounds.155 The report led to a number of amendments in the law, among them changes as regards marriages concluded in Sweden, as elaborated under section 3.1 on Swedish substantive law, as well as new restrictions on recognition of foreign marriages.

3.2.2.1 Recognition of Foreign Marriages Just as with the amendments of 2004, a distinction between marriages entered into in Sweden and marriages entered into abroad was made in connection with the amendments of 2014. With the possibility of exemption to marry in Sweden before the age of 18 abolished, it was discussed in the Government Official Report whether this called for the possibility of recognition of child marriages concluded abroad to be further restricted. According to the Commission of Inquiry this did not suffice as to justify the removal of the possibility of recognition of foreign child marriages, because of two reasons. First of all, it is possible that a child who is denied the possibility to marry in Sweden instead marries abroad and that this marriage subsequently becomes recognised in Sweden. In such cases, it was argued, the circumstances which serve as a basis for the assessment have likely changed; for example the parties might have become accustomed to being married.156 Secondly, the Commission of Inquiry held that it is quite reasonable that the law assumes a more restrictive approach as regards Swedish authorities’ participation to the conclusion of a marriage than their subsequent acceptance of a marriage already concluded.157 In the report it was suggested that no

153 Terms of Reference, Dir. 2012:35, Increased Protection Against Forced Marriages and Child Marriages.

154 See footnote 118.

155 Government Official Report, SOU 2012:35, p. 160.

156 Government Official Report, SOU 2012:35, p. 235.

157 Government Official Report, SOU 2012:35, p. 235. 27 further restrictions as to the possibility to recognise marriages concluded abroad should be adopted. The possibility of recognition of foreign marriages was not taken away by the Government in its final proposal to Parliament. One alteration of the law, despite the recommendation given in the Government Official Report, was however made. In line with the possibility of exemption in order to marry in Sweden before the age of 18 being removed, it was contended that the room for recognition of foreign child marriages indeed ought to be further constricted.158 Therefore, instead of special reasons (section 3.2.1.2) in order to recognise a child marriage it would now require extraordinary reasons (synnerliga skäl) being in evidence for the recognition of a marriage when at least one of the parties had a connection to Sweden through nationality or habitual residence at the time of the conclusion.159 The stringent precedent from 2012 of the Supreme Administrative Court would still be valid.160 Jänterä- Jareborg argues that with regard to the strict interpretation in practice of special reasons, the upgrading to extraordinary reasons does not have much substance,161 and that the effect was primarily to further signal society’s disapproval of any evasion of Swedish marriage law.162 In the Government Bill, the Government would however not go as far as to on a regular basis refuse recognition of all marriages. A marriage where one or both of the parties were below the age of 18 at the conclusion would, as explained above, not be recognised if at least one of the parties had a connection to Sweden through citizenship or habitual residence, unless there being special reasons (henceforth extraordinary reasons) in evidence. This rule was considered to be efficient enough in light of its purpose; the purpose being to prevent persons with a connection to Sweden to intentionally avoid the Swedish marriage impediments.163 However, not to recognise a

158 Government Bill, Prop. 2013/14:208, Increased Protection against Forced Marriages and Child Marriages and Admittance to the Council of Europe’s Convention on Violence Against Women, p. 26.

159 Chapter 1 § 8 a Act (1904:26 s. 1) in its wording after the amendments of 2014.

160 Government Bill, Prop. 2013/14:208, p. 27.

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

162 Jänterä-Jareborg, M., Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 ‘Refugee Crisis’, p. 274.

163 Government Bill, Prop. 2013/14:208, pp. 27–28. 28 marriage entered into in accordance with laws differing from Swedish law when there was no connection to Sweden whatsoever was considered to be too far-reaching.164 Nevertheless, despite this rule allowing recognition of marriages concluded without any connection to Sweden with one spouse below the age of 18, the public policy- reservation in Chapter 7 § 4 of the 1904 Act would still stand in the way of marriages that contravenes public policy being recognised. Except for the removal of the possibility to the exemption to marry in Sweden below the age of 18, the amendments of 2014 as regards child marriage was mostly of symbolic value, as pointed out both by Jänterä-Jareborg and Sayed.165 As mentioned above, the interpretation of special reasons even before the amendments of 2014 was very strict.

3.2.3 Amendments of 2018 Through the amendments of 2014, the possibilities for the recognition of foreign child marriages with at least one party having a connection to Sweden became more or less non-existent. Still, there was a possibility for recognition in such cases, however small and insignificant. But perhaps even more stressing of an issue was the fact that when such a connection did not exist the marriage would be recognised as long as recognition was not contrary to public policy in Sweden. According to the terms of reference to the Commission of Inquiry in 2017, a further investigation of limiting the possibility of recognition of foreign child marriages was to be carried out.166 It was emphasised that marriages with at least one person below the age of 18 should generally not be accepted within the Swedish legal system.167

3.2.3.1 Non-Recognition in Respect of All Child Marriages The fact that child marriages where the parties at the time of the conclusion had no connection to Sweden were, not as an exception but as a rule, still recognised was seen

164 Government Bill, Prop. 2013/14:208, p. 28.

165 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 201. Sayed, M., Tvångsäktenskap och barnäktenskap — en analys av det svenska rättsläget, SvJT 2015, p. 494.

166 Terms of Reference, Dir. 2017:25, Increased Protection against Child Marriage, Forced Marriage and Crimes with Honour Motives, p. 1.

167 Terms of Reference, Dir. 2017:25, p. 2. 29 as allowing a too wide of a gap for child marriages.168 Therefore, according to the Swedish Government Bill, the rule of 18 years of age in order to marry ought to be further underlined.169 The Commission of Inquiry suggested that the requisite of at least one of the parties having a connection to Sweden in order for Swedish marriage impediments to apply should remain.170 However, the Commission still regarded it as a problem that the possibility of refusal of child marriage remained very limited when none of the parties had a connection to Sweden at the time of the conclusion.171 The Commission therefore discussed different alternatives as how to handle this said problem. One alternative was to lower the threshold for what is considered forced marriage.172 The alternative was however ruled out since the risk with such a solution would be blurred lines as to what constitutes forced marriage.173 In addition it was quite uncertain if such a solution would actually make any difference in practice considering that victims of forced marriage rarely feel safe to tell the authorities about any coercion.174 Another alternative was to simply refuse recognition of all child marriages regardless of connection to Sweden and age, at the time of arrival to Sweden.175 This was, however, ruled out by the Commission as too far-reaching. It was stated that in a situation where a couple in which at least one of the parties is below the age of 18 at the time of the entering of the marriage move to Sweden at a much later date, there is simply no reason for the individuals concerned to take into account Swedish legislation.176 In such an instance non-recognition would be less urgent.177 The alternative finally recommended by the Commission of Inquiry was that a marriage should not be recognised if one of the

168 Government Bill, Prop. 2017/18:288, p. 10.

169 Government Bill, Prop. 2017/18:288, pp. 10–11.

170 Government Official Report, SOU 2017:96, Extended Hindrance of against Recognition of Foreign Child Marriages, p. 101.

171 Government Official Report, SOU 2017:96, p. 102.

172 Government Official Report, SOU 2017:96, p. 104.

173 Government Official Report, SOU 2017:96, p. 105.

174 Government Official Report, SOU 2017:96, p. 105.

175 Government Official Report, SOU 2017:96, p. 110.

176 Government Official Report, SOU 2017:96, p. 111.

177 Government Official Report, SOU 2017:96, p. 111. 30 parties was still below the age of 18 when first arriving to Sweden.178 This section would in other words result in non-recognition of marriages with one party being below the age of 18 upon arrival to Sweden, and this regardless of any connection to Sweden. Through the new amendments the requisite, promoted by the Commission of Inquiry, of at least one of the parties having a connection to Sweden for the prohibition of recognition to apply was entirely removed.179 As of the 1 of January 2019, the prohibition of recognition of child marriage covers all marriages, even those concluded according to foreign law and without the parties having any connection to Sweden whatsoever. Accordingly, marriages concluded prior to that date are not covered by the latest amendments.180 By abolishing the requisite of connection, individuals who were earlier not subject to the age limit of 18 years in the Swedish Marriage Code are now comprised by it. Generally, in order for a marriage to be recognised in Sweden the age limit of 18 years applies and that is final. Crucial for the assessment of whether to recognise a marriage is the age of the parties concerned at the conclusion of the marriage. Again, the fact that both parties to the marriage later comes of age does not mean that the marriage ceases to be a child marriage.181 The suggestion from the Commission of Inquiry of non-recognition of marriages in which one or both of the parties are still under 18 when arriving to Sweden was in other words not followed in the adopted law amendment. Non-recognition of child marriages still applies even if the spouses come to Sweden years or even decades after the conclusion of the marriage.182 As with earlier legislation, one authority’s decision to recognise or not to recognise a marriage is not binding upon another authority, but it is up to each competent authority to decide on the validity of a marriage.183

178 Government Official Report, SOU 2017:96, p. 101.

179 Chapter 1 § 8 a Act (1904:26 s. 1) in its wording after the amendments of 2018.

180 Government Bill, Prop. 2017/18:288, pp. 31–32.

181 Government Bill, Prop. 2017/18:288, p. 6.

182 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 354.

183 Government Bill, Prop. 2017/18:288, p. 30. 31 3.2.3.2 The ‘Escape Clause’ Ever since the possibility of recognition of child marriages when there was a connection to Sweden was removed in 2004, such marriages could still in exceptional cases be recognised (special reasons, see section 3.2.1.2). Through the amendments of 2014 this possibility was further restricted (extraordinary reasons, see section 3.2.2.1). That is, the amendments until the legislation adopted in 2018 allowed for marriages to be recognised even when there was a connection to Sweden and one of the parties to the marriage was below 18 years of age at the time of the conclusion. This was a form of ‘escape clause’ from the otherwise prevailing general rule of non-recognition. The wording of the escape clause did not preclude its application even if one of the parties to the marriage were still under the age of 18 at the time of the assessment of whether the marriage was valid. The Commission of Inquiry came to the conclusion that the escape clause still ought to cover these cases too, arguing that even though the reasons for doing so were vague, not keeping it would risk Swedish legislation coming into conflict with international commitments.184 This approach was nevertheless abandoned in the 2018 amendment altogether.185 Nevertheless, the escape clause was not abolished entirely. In respect of individuals who had reached the age of 18 by the time of the assessment the escape clause should still be available.186 That is, the escape clause was narrowed down as to only allow recognition of marriages when both parties at the time of the assessment has reached the age of 18 as opposed to also allowing recognition when one of the parties is still below the age of 18 at the time of the assessment. The escape clause is applicable in cases in which there was no connection to Sweden when the marriage was entered into as well as in situations when there was such a connection.187 The requisite of extraordinary reasons is still in force. Even though the the new amendments of the law entails more or less total non-recognition of child marriage, the escape clause is supposed to mitigate

184 Government Official Report, SOU 2017:96, p. 115.

185 Government Bill, Prop. 2017/18:288, p. 24.

186 Government Bill, Prop. 2017/18:288, p. 27.

187 Government Bill, Prop. 2017/18:288, p. 27. 32 too harsh effects of non-recognition and also ensure that the law complies with

Sweden’s international obligations.188

3.2.3.3 Current Swedish Legislation in Summary Summing up, current Swedish legislation does not leave any scope for recognition of marriages when one of the parties was below 18 years of age when the marriage was concluded, irrespective of any connection to Sweden at the time of the conclusion. If, however, both of the parties to the marriage are 18 years of age at the time of the assessment of whether the marriage is to be recognised and extraordinary reasons are at hand, the marriage may be recognised, according to Chapter 1 § 8 a paragraph 2 in the 1904 Act.

4 The Laws of England and Scotland

4.1 Substantive Laws on Marriage in England and Scotland As explained in section 1.5, the English and Scottish legal systems are not entirely the same. England is a country of common law while Scotland is much more influenced by Continental Europe and its civil law. Nevertheless, in private international law on marriage, specifically child marriage, the laws of England and Scotland are much the same and will therefore in this thesis be elaborated in the same chapter. They do differ in some respects, which is elucidated when necessary. The prevailing legislation in England governing marriage is the Marriage Act

1949.189 The Act applies to marriages solemnised in England.190 According to its s. 2 ‘A marriage solemnized between persons either of whom is below the age of sixteen shall be void’. Consequently, a marriage concluded in England with either party below the age of 16 means the marriage is void.

The same goes for Scottish law. In Scotland the Marriage (Scotland) Act 1977191 s. 1(1)(2) likewise establishes the minimum age for marriage to be 16 years, stating ‘No

188 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 354.

189 The Marriage Act 1949 c. 76, 1949 CHAPTER 76 12 13 and 14 Geo 6.

190 See the Introductory Text to The Marriage Act 1949 ‘An Act to consolidate certain enactments relating to the solemnization […] of marriages in England’.

191 The Marriage (Scotland) Act 1977, 1977 CHAPTER 15. 33 person domiciled in Scotland may marry before he attains the age of 16’ and that ‘A marriage solemnised in Scotland between persons either of whom is under the age of 16 shall be void’. If a marriage entered into in Scotland would be void under a rule in Scottish internal law, this rule shall prevail over any law under which the marriage would be valid.192 From this follows that even if a marriage is valid according to the domiciliary laws, a marriage celebrated in Scotland will be void if either party to it is below the age of 16.193

4.2 Private International Law on Marriage in England and Scotland 4.2.1 The Distinction Between Form and Capacity As in Swedish law, also in the laws of England and Scotland a distinction between form and capacity (see section 3.1 about form and substance, the latter being the parties’ capacity to marry), also known as essential validity,194 to marry is made. This has, however, not always been the case. Until the middle of the 19th century no such distinction was made. Instead, both form and capacity were assessed according to the lex loci celebrationis, i.e. the law of the place where the marriage was concluded.195 Later on, the courts began towards distinguishing between formal and substantial validity, holding that capacity to marry would from then on be governed by a person’s domicile, while form would still be governed by the lex loci celebrationis.196 Two cases are presented in the following in which the courts ruled that in matters of capacity English law applied to English domiciliaries even though the marriages were concluded abroad. The first case is Brook v. Brook197 decided 1858, in which the parties both had their antenuptial domicile in England, but married in Denmark during a temporary visit

192 Anton, A. E., Beaumont, P. R., McEleavy, P. E., Private International Law, W. Green/Thomas Reauters, 2011, p. 733.

193 Anton, Beaumont and McEleavy, p. 733.

194 Cheshire and North, p. 909.

195 Dicey, A.V., Morris, J.H.C., Collins, Lord of Mapesbury, The conflict of Laws, Sweet & Maxwell, 2012, p. 918.

196 Dicey, Morris and Collins, p. 918.

197 Brook v. Brook, 65 E.R. 746 (1858). 34 there.198 Marriage in England was not an option since the couple consisted of a man and the sister of his deceased wife, making the marriage forbidden according to English law. The Court argued

‘The law of England is wisely reluctant to admit any doctrine which is repugnant to the settled principles and policy of its own institutions. It is a settled principle of the law of England not to recognise or give effect to any contract illegal or immoral, or against public policy. This principle, so well established, is binding upon all English subjects, and imperative in all English Courts of Justice. The question of illegality, immorality or contravention of public policy in such cases is to be decided by the laws of England, and not by the laws of any foreign country’.199

The second case is Mette v. Mette,200 in which a man born in Germany but who had become a ‘naturalized British subject’, i.e. he was to be treated as if born a natural subject within the U.K., executed a will leaving all his property to his wife and children.201 However, after the death of his first wife the man returned to Germany to marry the sister by half-blood of his first wife, the half-sister being domiciled in

Frankfort, with whom he later had several children.202 Subsequent to both the man’s and his second wife’s passing, the man’s brother took out a letter of administration as the uncle and guardian of all the children under the supposition that the will, executed during the man’s first marriage, was revoked by the second marriage.203 The court held that the principle laid down in Brook v. Brook applied equally for naturalised subjects.204 The disability for either party to a marriage can invalidate the marriage, and since such a marriage as the one solemnised between the man and his second wife would not be

198 Brook v. Brook, 65 E.R. 746 (1858).

199 Brook v. Brook, 65 E.R. 746 (1858), at 767.

200 Mette v. Mette, 164 E.R. 792 (1859).

201 Mette v. Mette, 164 E.R. 792 (1859).

202 Mette v. Mette, 164 E.R. 792 (1859).

203 Mette v. Mette, 164 E.R. 792 (1859).

204 Mette v. Mette, 164 E.R. 792 (1859). 35 recognised in England because of prohibited degrees of affinity, it was invalid even though it was validly solemnised abroad and despite the fact that the domicile of the second wife did not disable her to enter such a marriage.205 As explained above, form is a question of the ceremony and contract of the marriage. Since the matter of age is a matter of capacity and not form, the latter will not be further elaborated in here.

4.2.2 The Law Applicable to the Capacity to Marry 4.2.2.1 Intended Matrimonial Home Theory and Dual Domicile Theory There are two main theories as regards the law that should govern capacity to marry, according to Cheshire and North.206 One of them is the dual domicile theory according to which each party’s capacity to marry is decided according to the law of his or her domicile.207 The other one is the so called intended matrimonial home theory, according to which the parties’ capacity to marry is determined by the law of the place where the parties intend to live their married life.208 Lack of capacity renders a marriage invalid.209 As to which theory should apply, Cheshire and North argue, there are rather inconclusive decisions, some of which advocate in favour of the former, some advocating for the latter.210 This we will return to. However, before doing so some arguments in favour of, as well against, each theory ought to be accounted for. Cheshire and North explain that in favour of the intended matrimonial home theory is that on the basis of social grounds it is superior to the dual domicile theory; namely, marriage as an institution is closely connected with public policy and social morality of the state.211 The question of validity of marriage can have an impact on the community in which the parties live as a married couple.212 In other words, it could be argued that

205 Mette v. Mette, 164 E.R. 792 (1859).

206 Cheshire and North, p. 910.

207 Cheshire and North, p. 910.

208 Cheshire and North, p. 910.

209 Cheshire and North, p. 910.

210 Cheshire and North, pp. 913–918.

211 Cheshire and North, p. 910.

212 Cheshire and North, p. 911. 36 with reference to public policy and moral it is the law of the state where the parties actually intend to live that is best suited to be decisive in the assessment of whether a marriage is valid or not. As to illustrate their point Cheshire and North give an example of an English girl aged 15 and a half that marries a foreigner domiciled in a country where the law permits such marriages. They argue that ‘it might be doubtful whether it is justifiable to regard the marriage as void, if the life of England is unaffected if the girl goes to live within in [the husband's] country, as the girl supposes to sever her connection with England’.213 This theory furthermore means that one law alone has to be applied instead of two, and it may also be more effective than the dual domicile theory in upholding the validity of marriages.214 Against the intended matrimonial home theory is argued that a rule that in some cases makes impossible the determination of whether a marriage will be valid or not at the time of the celebration of the marriage is undesirable.215 This would be the case if it is doubtful whether the parties genuinely intend to establish their home in a certain country. As Cheshire and North exemplify, if the parties were to unreasonably delay moving to the intended matrimonial home – what law will be decisive in such a case?216 In some situations the couple might not even have decided at the time of the celebration of the marriage where to live. Furthermore, the theory enables the circumvention of rules in each party’s domiciliary law, which are of legitimate concern, through the intention to set up a matrimonial home in another country.217 Such legitimate concern might, for example, be the wish to prevent child marriage and therefore not allowing persons below a certain age to marry. From the dual domicile theory follows that capacity to marry is decided by the law which up to the time of the marriage has governed the personal status of each party; the law of the domicile being the law to which a person ‘belongs’, in the words of Cheshire and North.218 This in itself could be, and is, argued to be one of the dual domicile

213 Cheshire and North, p. 911.

214 Cheshire and North, p. 911.

215 Cheshire and North, p. 911–912.

216 Cheshire and North, p. 912.

217 Cheshire and North, p. 912.

218 Cheshire and North, p. 912. 37 theory’s greatest merits.219 Another aspect of the dual domicile theory is that it necessitates taking into account the law of the domicile of both parties. Traditionally the intended matrimonial home theory has resulted in only the law of the husband’s domicile being of relevance, since it often is in the country of his domicile where the parties intend to establish their matrimonial home.220 However, the dual domicile theory is not exempted from criticism either. Crawford and Carruthers explain that the theory which requires the cumulative application of the parities’ personal law always results in the stricter rule prevailing, and in this way ‘this theoretical construct tumbles over its own heels’.221 The dual domicile theory tends to invalidate marriages to a higher extent than the intended matrimonial home theory.222 This is obviously not a very surprising consequence. The possibility of there being a marriage impediment naturally increases if more than one law has to be applied. Moreover, the dual domicile theory admits its own evasion.223 If, for example, a party to an upcoming marriage moves abroad and acquires a domicile a choice, English law will no longer be decisive as regards capacity. According to English law, this person is now in full capacity to marry if the law of the domicile of choice allows it. Same goes for Scottish law. Cheshire and North argue that from this point of view, the protection offered by the dual domicile theory is rather illusory.224 Another point of criticism is that the rules of acquisition and loss of domicile are quite inflexible, and as a result an individual’s capacity to marry may be governed by the law of a place he or she has never visited.225 This is nevertheless argued by Cheshire and North to provide a reason for changing the rules relating to domicile rather than the rules governing the capacity to marry.226

219 Cheshire and North, p. 912.

220 Cheshire and North, pp. 910 and 912.

221 Crawford and Carruthers, p. 337.

222 Cheshire and North, p. 912.

223 Cheshire and North, p. 912.

224 Cheshire and North, p. 912.

225 Cheshire and North, p. 912.

226 Cheshire and North, p. 913. 38 Turning to the case law: Does judicial authority support one of the theories above the other? Early decisions do enable a conclusion in favour of the one or the other.227 In Brook v. Brook from 1861 and in Mette v. Mette, mentioned above, the outcomes were compatible with either one of the theories.228 Since then, however, case law has developed in both directions, Cheshire and North explain, some decisions supporting the intended matrimonial home theory and some the dual domicile theory. In De Reneville v. De Reneville,229 decided in 1948, in which an Englishwoman after marrying a Frenchman moved to France where they lived for a period of time, Lord Greene stated

‘[This] is a case of essential validity. By what law is that to be decided? In my opinion by the law of France, either because that is the law of the husband's domicile at the date of the marriage or (preferably, in my view) because at that date it was the law of the matrimonial domicile. […] In the present case, the matrimonial domicile was clearly French, and it is, in my opinion, to French law that the question whether the marriage was void or voidable on the grounds alleged must be referred’.230

In the case Radwan v. Radwan (No. 2),231 decided in 1973, the court held that capacity to enter into a polygamous marriage was also to be governed by the law of the intended matrimonial domicile.232 However, it was furthermore stated that ‘[t]here is a difference although difficult to define between capacity to marry under the age of 16 or to marry within the prohibited degrees of affinity and capacity to contract a polygamous marriage’.233 In other words, the intended matrimonial home theory was not held to be

227 Cheshire and North, p. 913.

228 Cheshire and North, p. 913.

229 De Reneville v. De Reneville, [1948] P. 100 (1947).

230 De Reneville v. De Reneville, [1948] P. 100 (1947), at 114.

231 Radwan v. Radwan, [1973] Fam. 35 (1972).

232 Radwan v. Radwan, [1973] Fam. 35 (1972).

233 Radwan v. Radwan, [1973] Fam. 35 (1972), at 39–40. 39 a universal test as to capacity.234 The decision leaves open which theory should be applied when capacity is a question of age. According to Cheshire and North, support for the dual domicile theory, despite the sometimes inconclusive decisions and decisions in favour of the other, weigh heavier than the support for the intended matrimonial home theory.235 In the case Re Paine236 a woman was through her mother’s testament left a sum of money on trust.237 In case of the woman leaving any children of her own behind, then on trust for her absolutely. The woman came to marry her deceased sister’s husband in Germany, while she herself was domiciled in England where the couple also came to live. One daughter of the marriage survived the woman. However, the legacy of the woman was not absolute unless the surviving child was legitimate. Therefore the validity of the marriage between the woman and her German husband came into question. The court held that at the time of the conclusion of the marriage the woman had lacked capacity to contract such a marriage, marriages of this kind being prohibited under English law at the time.238 However, as Cheshire and North point out, even though in this judgment the court relied on the dual domicile theory, the results would have been the same if the court would have relied on the intended matrimonial home theory instead.239

In Pugh v. Pugh240 a man of English domicile and a girl of Hungarian domicile married in Austria. The girl was 15 years of age at the time of the conclusion of marriage.241 According to the Age of Marriage Act 1929 s. 1 (replaced by the Marriage Act 1949, s. 2 as for England) marriage between persons either of whom is under the age of sixteen was prohibited. The Age of Marriage Act itself contained no provision on whether its operation was to be extended to marriages ‘beyond the sea’.242 Pearce J said

234 Cheshire and North, p. 915.

235 Cheshire and North, p. 915.

236 Paine, Re, [1940] Ch. 46 (1939).

237 Paine, Re, [1940] Ch. 46 (1939).

238 Paine, Re, [1940] Ch. 46 (1939).

239 Cheshire and North, p. 916.

240 Pugh v. Pugh, [1951] P. 482 (1951).

241 Pugh v. Pugh, [1951] P. 482 (1951).

242 Pugh v. Pugh, [1951] P. 482 (1951). 40 that ‘[i]t is urged on me that the statute is ambiguous and also (rightly in my opinion) that if I am in doubt as to its meaning the marriage is to be deemed valid […]’.243 He continued

‘But is the statute ambiguous? The words are clear and general. It must be remembered that personal status and capacity to marry are considered to be the concern of the country of domicile. It is right and reasonable that the country of domicile should […] from time to time vary and affect the personal status of its subjects and their capacity to marry. […] I see no reason to put upon the words any other limitation than the obvious one that they are not intended to apply to marriages abroad of persons who are not domiciled here and who are not the concern of or subject to the laws of Parliament’.244

The Act was, in other words, interpreted to be extra-territorial if applicable and the court held that the marriage was void on the ground that it was a marriage which the man could not lawfully enter into, notwithstanding that the marriage was valid according to the law of the domicile of the girl.245 The fact that the marriage was deemed invalid with account to the husband’s domicile together with the decision in Re Paine undoubtedly suggests, according to Cheshire and North, that the court applied English law as being the law of one of the contracting parties’ domicile (i.e. applying the dual domicile theory).246 Though the fact remains that the outcome would have been the same if the intended matrimonial home theory had been applied.247 In a relatively recent case, A Local Authority v. X248 decided in 2013, a girl domiciled in England entered into marriage in Pakistan with a man domiciled there.249 The girl was only 14 years of age. With reference to Pugh v. Pugh, the court held that statutory provisions as to minimum age are extra-territorial and that if either party was domiciled

243 Pugh v. Pugh, [1951] P. 482 (1951), at 491.

244 Pugh v. Pugh, [1951] P. 482 (1951), at 491–492.

245 Pugh v. Pugh, [1951] P. 482 (1951).

246 Cheshire and North, p. 916.

247 Cheshire and North, p. 916.

248 A Local Authority v. X, 2013 WL 5904627 (2013).

249 A Local Authority v. X, 2013 WL 5904627 (2013). 41 in England at the date of the marriage and one of them was below the age of 16 it makes no difference that both parties may have been of sufficient age and had capacity under the law of the domicile to the other party.250 What, moreover, follows from Pugh v. Pugh and this later case is that English law invalidates also a marriage where it is not the English domiciliary that is of insufficient age, but also when it is the party domiciled elsewhere that according to English law is of insufficient age. Accordingly, if either party is under 16 and if either party is domiciled in England, the marriage is invalid.251 Here lies an important distinction between the laws of England and Scotland. In the Marriage (Scotland) Act 1977, mentioned in section 4.1, it is stated that no person domiciled in Scotland may marry before the age of 16, hence allowing marriages where one of the parties is under 16 as long as this party is not the one domiciled in Scotland. In other words, the Marriage (Scotland) Act 1977 pointedly dissents from English law in this respect.252 As for Scotland, the dual domicile theory is expressly laid down by the Family Law (Scotland) Act253 2006 s. 38(2) ‘The question whether a person who enters into a marriage (a) had capacity […] to enter into it shall […] be determined by the law of the place where, immediately before the marriage, that person was domiciled’.

4.2.2.2 Antenuptial domicile As a general rule, capacity to marry is governed by the parties antenuptial domicile.254 The antenuptial domicile interacts with the dual domicile theory. Namely, it is the antenuptial domicile of both parties to the marriage that is to be determined. This was clarified in Brook v. Brook from 1861, where the Court held

‘The forms of entering into the contract of marriage are regulated by the lex loci contractus, the essentials of the contract depend upon the lex domicilii. If the

250 A Local Authority v. X, 2013 WL 5904627 (2013).

251 Dicey, Morris and Collins, p. 947.

252 Dicey, Morris and Collins, p. 947.

253 The Family Law (Scotland) Act 2006 asp 2.

254 Dicey, Morris and Collins, p. 939. 42 latter are contrary to the law of the domicile, the marriage (though duly

solemnized elsewhere) is there void’.255

This goes the other way around as well. In the case Sottomayor (otherwise De Barros) v. De Barros256 (hereafter Sottomayor v. De Barros) decided in 1877, which referred to Brook v. Brook from 1861, the Court held that a marriage celebrated in England and also valid according to English law, was void on the ground that it was prohibited according to the law of Portugal, where the parties both had their antenuptial domicile.257 However, the circumstances were somewhat different in this case. In Brook v. Brook from 1861 the parties had only been temporary visiting in Denmark as opposed to the case of Sottomayor v. De Barros, where the parties moved to England with the intention to stay there. Still, the Court stated ‘[Brook v Brook] is, therefore, not decisive of the present case; but the reasons given by the Lords who delivered their opinions in that case strongly support the principle on which this judgment is based’ and ruled that the law of Portugal governed the parties capacity to marry.258 These two cases together are regarded as establishing a general principle that capacity to marry is indeed governed by a person’s antenuptial domicile.259 In Mohamed v. Knott (also mentioned in section 1.2) a man aged 26 married a girl aged 13 in Nigeria.260 Both were domiciled there and the marriage was valid according to Nigerian law. The court accordingly held the marriage to be valid.

4.2.2.3 Public Policy When capacity to marry is governed by foreign domiciliary law the marriage will still not be recognised by a court if it is repugnant to public policy.261 The court has

255 Brook v. Brook, 11 E.R. 703 (1861), at 704.

256 Sottomayor (otherwise De Barros) v. De Barros (No.1), (1877) 3 P.D. 1.

257 Sottomayor (otherwise De Barros) v. De Barros (No.1), (1877) 3 P.D. 1.

258 Sottomayor (otherwise De Barros) v. De Barros (No.1), (1877) 3 P.D. 1, at 7.

259 Dicey, Morris and Collins, p. 940.

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

261 Cheshire and North, p. 921. 43 discretion to repudiate capacity on the ground that it would be unconscionable.262

However, this discretion is to be exercised sparingly.263 In Cheni (otherwise Rodriguez) v. Cheni,264 decided in 1965, the court recognised as valid a marriage concluded in Cairo between an uncle and his niece. Sir Jocelyn Simon P famously stated

‘[…] what I believe to be the true test [is] whether the marriage is so offensive to the conscience of the English court that it should refuse to recognise and give effect to the proper foreign law. In deciding that question the court will seek to exercise common sense, good manners and a reasonable tolerance’.265

As for Scotland, the Family Law (Scotland) Act 2006 s. 38(4) states ‘The capacity of the person to enter into the marriage shall not be determined under the law of the place where, immediately before the marriage, the person was domiciled in so far as it would be contrary to public policy in Scotland for such capacity to be so determined’. If offensive to conscience or common sense, a Scottish court has discretion as to not require capacity by or not give effect to a provision of a party’s personal law.266

4.2.2.4 Current Legislation in England and Scotland in Summary Just as with Swedish legislation, a summary of current English law as well as Scottish law is given here. As for England, an English domiciliary must reach the age of 16 in order to marry. If either party to the marriage is below the age of 16 and at least one of the parties to the marriage is an English domiciliary, the marriage is void. This is the case even if the marriage is not solemnised in England. A Scottish domiciliary must likewise reach the age of 16 to marry. However, as opposed to English law, it is only the Scottish domiciliary that must have reached the

262 Cheshire and North, p. 921.

263 Cheshire and North, p. 921.

264 Cheni (otherwise Rodriguez) v. Cheni, [1965] P. 85 (1962).

265 Cheni (otherwise Rodriguez) v. Cheni, [1965] P. 85 (1962), at 99.

266 Crawford and Carruthers, p. 339. 44 age of 16. I.e., the other party to the marriage may be below the age of 16 as long as the foreign domiciliary law allows for marriage at an earlier age. If both parties to the marriage are foreign domiciliaries, the marriage is recognised if both parties has capacity to marry according to their respective domiciliary law. However, the marriage must be concluded abroad. If a marriage is concluded in England or Scotland, both parties must have reached the minimum age of 16, or the marriage is void. When capacity to marry is governed by foreign domiciliary law, the marriage will nevertheless not be recognised if it is repugnant to public policy.

5 The Implications of Recognition and Non- Recognition

As explained in section 1.4, even though this thesis gives a comparative report and analysis, the main focus is on Swedish legislation. The reason is because child marriage in recent years has been on the political agenda in Sweden, resulting in the law amendments of 2018 and before that in law amendments in 2004 and 2014. The topic has attracted far less attention in the U.K. than in Sweden during this millennium. The fact that case law governing the capacity of children to marry in England and in Scotland to a large extent is from the nineteenth century confirms this. The discussion and debate both prior and subsequent to the amendments in Swedish law offer quite a wide basis of viewpoints and critique, why this chapter is mostly dedicated to discussion about some of the main points of criticism towards the current Swedish legislation on child marriage concluded abroad. First of all, however, the reasons behind the development of Swedish law are presented.

5.1 The Occurrence of Child Marriage in Sweden 5.1.1 Statistics Concerning Child Marriage In section 1.5.1.3 on the steps in the comparative research, it is explained that an objective separate report on each legal system must be given prior to the critical evaluation of what has been discovered. The increase in child marriages in Sweden was 45 undoubtedly a driving force behind the 2018 law amendments, why the statistics are presented in this chapter together with other reasons brought forward in favour of the amendments. Common for the amendments between 2004 and 2018 in Swedish legislation was the comprehensive discussion about the occurrence of, and the recognition of, child marriages in Sweden. During what is often referred to as the European refugee crisis, initially two European states had a welcoming attitude towards the receiving of refugees and therefore became popular countries of refuge, Sweden being one of them.267 During this short period Sweden, with a population of 10 million, received about 163,000 refugees.268 Following this, Jänterä-Jareborg asserts, a clash of values has been brought into the limelight, with women and children as the constructed victims.269 In the Government Official Report before the law amendments of 2014, statistics on the situation in Sweden regarding child marriage was recited. In December 2011 alone there were 13 persons registered as married in Sweden between the ages of 15–17 in

Sweden's population registry.270 However, during the course of only one year the Swedish Tax Authority, i.e. Sweden’s population agency, had 159 cases of population registration involving child marriages.271 Out of these cases 89 concerned marriages where the parties at the conclusion had no connection to Sweden, and of these 61 marriages were registered.272 Registration of the remaining was deemed as incompatible with public policy since the cases concerned marriages where one of the parties was in the age between 7–15 years, and registration was therefore refused.273 In 70 of the 159 cases there was a connection to Sweden at the time of the conclusion, and in only one of

267 Jänterä-Jareborg, M., Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 ‘Refugee Crisis’, pp. 267–268.

268 Jänterä-Jareborg, M., Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 ‘Refugee Crisis’, p. 268.

269 Jänterä-Jareborg, M., Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 ‘Refugee Crisis’, p. 268.

270 Government Official Report, SOU 2012:35, p. 166.

271 Government Official Report, SOU 2012:35, p. 167. It is somewhat unclear in the Government Official Report how the number of 13 persons in Sweden between the ages of 15–17 registered as married compared to the number of 159 cases of the Swedish Tax Authority is to be understood. What is probably meant is that in the month of December in 2011 alone there was 13 persons in the age span of 15–17 registered as married, but in the course of only one year (it is not specified in the report what year) that number had increased greatly.

272 Government Official Report, SOU 2012:35, p. 167.

273 Government Official Report, SOU 2012:35, p. 167. 46 these cases the exemption requiring special reasons was made use of.274 The reason for the granted exemption was that the actual habitual residence did not correspond with the formal residence together with the fact that it was an established relationship with joint children.275 However, it was pointed out that these numbers only showed the number of marriages registered in Sweden’s population records and that the actual number was probably much higher.276 This is due to the fact that a lot of marriages concluded abroad are never registered, either because the parties never request it or simply because such a request is refused.277 Neither were so-called informal marriages, meaning a non- formalised relationship between the parties that they themselves and their surroundings equates with a legally binding marriage, a part of the statistics.278 In the following section, an account of some of the main arguments brought forward in the Government Bill in favour of the latest amendments is given.

5.1.2 Insufficient Protection Against Child Marriage With the removal of the possibility of exemption to marry in Sweden in 2014, it was pointed out that fewer and fewer people actually applied for the exemption, hence the need for the possibility was deemed less necessary.279 It was, however, also stated as a reason for no longer allowing exemptions that there was always the risk for the applications being the result of pressure from the surroundings of the person in question.280 With reference to the preparatory works to the law amendments of 2004, the fact that such an exemption not only meant that a minor was permitted to marry but also that this minor was exempted from the protection minority gives, was highlighted.281 Despite these prior amendments of the law there was nonetheless much to indicate that the occurrence of child marriage had not at all diminished in the years after the first

274 Government Official Report, SOU 2012:35, p. 168.

275 Government Official Report, SOU 2012:35, p. 168.

276 Government Official Report, SOU 2012:35, p. 179.

277 Government Official Report, SOU 2012:35, p. 179.

278 Government Official Report, SOU 2012:35, p. 180.

279 Government Bill, Prop. 2013/14:208, p. 23.

280 Government Bill, Prop. 2013/14:208, p. 24.

281 Government Bill, Prop. 2013/14:208, pp. 22–23. 47 two amendments, but in fact had increased as a result of the large amounts of refugees received in Sweden since 2014.282 The statistics presented in the previous section confirm this. In the amendments up to 2018 focus was, as explained in chapter 3, on marriages concluded either in Sweden or foreign marriages where at least one of the parties had a connection to Sweden. After the increase in people seeking refuge in Sweden in 2015, the focus was turned to child marriages concluded abroad without any connection to Sweden. The number of 13 children seeking asylum in Sweden who were registered as married in December 2011 had by 2016 risen to 132.283 In the Government Official Report to the latest amendments, a case where a refugee, a 14 year old girl, was placed with her 21 year old husband was called to attention as a deterrent example of what the allowing of recognition of child marriage might result in.284 In the aftermath of the European refugee crisis in 2015, media have been eager to report that many of the asylum-seeking children were married upon arrival to the country of refuge.285 Jänterä-Jareborg means that a picture often painted is that of a young girl, married against her will to an older man.286

5.1.3 Towards Increased Protection In the Government Bill of 2018 it was emphasised that the purpose of the age limit of 18 years in substantive Swedish legislation is to protect individuals from too early marriages, and that the rule in Swedish private international law likewise stipulating 18 years as a main rule serves the same purpose.287 It was however argued in the Bill that the then prevailing legislation did not offer an equal protection from early marriages to all children because of the requisite of connection to Sweden through nationality or habitual residence.288 This meant that children entering marriages abroad having no

282 Terms of Reference, Dir. 2017:25, p. 5.

283 Government Bill, Prop. 2018/19:288, p. 10.

284 Government Official Report, SOU 2017:96, p. 40.

285 Jänterä-Jareborg, M., Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 ‘Refugee Crisis’, p. 270.

286 Jänterä-Jareborg, M., Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 ‘Refugee Crisis’, p. 270.

287 Government Bill, Prop. 2018/19:288, p. 11.

288 Government Bill, Prop. 2018/19:288, p. 11. 48 connection to Sweden were left outside the scope of the protection offered by the law. For that reason, widening the scope of the legislation was considered to be a necessity.289 In other words, Swedish private international law was deemed to provide an insufficient protection in this regard. Accordingly, this insufficiency had to be healed, resulting in the law amendments of 2018. In the aforementioned Government Bill it was furthermore stated that even though Swedish legislation cannot prohibit the occurrence of child marriages abroad, Sweden can work as a role model by setting an example by adopting a legislation that ‘expresses a non-discriminatory and modern view on marriage and family life’.290 The statement is an interesting one and goes hand in hand with what Jänterä-Jareborg means is a driving force behind many family law reforms in Nordic countries, namely not to do less than its Nordic neighbours.291 More is said about this below. The reasons for the new amendments put forward in the Government Bill make valid arguments. Clearly, the protection offered by the law prior to 2019 did not include children, in practice often girls, married abroad without any connections to Sweden at the conclusion of the marriage. Needless to say, this was an unsatisfactory solution since child marriages as a phenomenon is something that Swedish legislation since 2004 has been adjusted in order to prevent and counteract. Furthermore, wanting to set an example for other countries in hope they will follow can be a reason in itself in favour of new legislation, and not necessarily a bad reason. With this explanation of the main motives behind the latest amendments in Swedish legislation, the following sections include some of the main points of criticism towards the legislation. Arguments both in favour of and against the recognition of child marriage are discussed and analysed.

5.2 Consequences of Non-Recognition The reader is now acquainted with the reasons behind the latest law amendments in Sweden. The new legislation was welcomed from many directions, the Children’s

289 Government Bill, Prop. 2018/19:288, p. 11.

290 Government Bill, Prop. 2018/19:288, p. 11.

291 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 351. 49 Ombudsman to mention one of them. Nevertheless, the reactions were not only positive. Amongst others, the Swedish Legislative Council, an authority consisting of judges from the Swedish Supreme Court and the Swedish Supreme Administrative Court with the task to review legislation proposals ex ante, was for several reasons critical and did in fact not endorse the proposal. Bogdan explains that though not entirely unique, it is still unusual for the Government to pursue legislation despite it not being recommended by the Legislative Council.292 The continued discussion below is divided into the following sections: general remarks on the reform’s impact, the preclusion of legal effects of marriage, limping marriages, international commitments and finally a summary of what has been said.

5.2.1 General Remarks on the Reform’s Impact In the recommendation in which the Legislative Council, as said, chose not to recommend to go through with the proposal, the Council argued that it was doubtful whether the aims of the legislation at all would be reached.293 The aims being to ensure the protection against marriage of all children in Sweden as well as to discourage the prevalence of child marriage.294 The prohibition of recognition would not have effect as protection of children who had no connection to Sweden, the Council argued, and furthermore, it would not contribute to upholding the prohibition of marrying before the age of 18 that applies in Sweden.295 Moreover, the Council doubted whether the legislation at all would countervail the existence of child marriages abroad. This since there is no reason for someone without any connection to Sweden to take Swedish legislation on marriage into consideration when the person has no intention as to leave the country of origin to establish habitual residence in Sweden.296 As explained in chapter 3, one authority is not bound by the decision of another authority on whether to recognise a child marriage. A marriage may be recognised in

292 Bogdan, M., Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages, Journal of Private International Law, 2019, p. 248.

293 Government Bill, Prop. 2018/19:288, Annex 4, (Opinion by the Legislative Council), p. 46.

294 Government Bill, Prop. 2018/19:288, Annex 4, (Opinion by the Legislative Council), p. 46.

295 Government Bill, Prop. 2018/19:288, Annex 4, (Opinion by the Legislative Council), p. 46.

296 Government Bill, Prop. 2018/19:288, Annex 4, (Opinion by the Legislative Council), p. 46. 50 one context but not in another.297 Since the introduction of rules on non-recognition of certain marriages in 2004, some individuals will not know whether they are considered married in Sweden or not.298 Jänterä-Jareborg writes that this uncertainty of whether one’s marriage is recognised is likely to increase in the future as a result of the extension of the ban of recognition of child marriages.299 As noted in the Government Bill from 2018, some foreign marriages are never registered, why the actual number of child marriages in Sweden is probably higher than what the statistics show. There are child marriages that goes ‘under the radar’, so to speak. One cannot rule out that there is a possibility that some individuals without any prior connection to Sweden are not familiar with the fact that child marriages as a main rule are not recognised according to Swedish law. If these individuals never apply for their marriage to be registered, or if the marriage is never assessed by a competent authority, the parties to the marriage and their surroundings might live under the premiss that the marriage is recognised as valid in Sweden. If a couple lives under this false premiss for a long period time, perhaps even decades, and have become accustomed with life as married, the escape clause could potentially step in. This is nevertheless no guarantee, and as today there is no precedent giving clear guidance on how such a case would be determined by a competent authority. Here it is interesting to discuss the laws of England and Scotland. The two requisites that have to be fulfilled in order to acquire a new domicile are established residence as well as intention to remain there permanently. Together with other rules governing the acquisition of domicile, such as the presumption against the acquisition of a domicile of choice from a domicile of origin, entails that a new domicile is not necessarily easy to acquire. Domicile as a connecting factor allows for the law of a certain jurisdiction to ‘follow’ the individual around in a way that previous Swedish legislation, with nationality and habitual residence as connecting factors, as well as current Swedish legislation, not making a distinction between people with a connection to Sweden and without such a connection, do not.

297 Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, p. 271.

298 Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, p. 271.

299 Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, p. 271. 51 As elaborated in section 4.2.2.2, it is the antenuptial domicile of each party, the dual domicile theory, that governs the individual’s capacity to marry. I.e., it is the domicile immediately before the marriage that is important to determine when establishing whether someone had capacity to marry. Domicile, as explained in chapter 2, does not have to change even if the propositus spends a large part of his or her life living in another jurisdiction or country, as was the case in i.a. the above mentioned decision in De Bonneval v. De Bonneval. This allows for individuals living, or even individuals who established habitual residence, in either England or Scotland, but who are not domiciliaries there, to marry abroad and have their marriage assessed according to the law of their domicile. In this way, it may be submitted that private international law on marriage in England and in Scotland is more foreseeable as to the consequences for the individual’s civil status – definitely compared to current Swedish law, but also Swedish law prior to 2019 since habitual residence may be acquired more easily than a domicile of choice. On the other hand, as Cheshire and North point out, domicile as a connecting factor is in some cases difficult to determine which in itself can increase the uncertainty as regards one’s civil status. Nevertheless, in a lot of cases domicile is not difficult to determine at all. This could, hypothetically, be the case if a refugee do not have the intention to stay in the country of refuge indefinite, but plans to one day return to the country of origin. As Cheshire and North also explain as regards refugees, the motives which caused the flight militates against the inference that there was intention to reside permanently in the country in which a person seeks refuge. In a situation as this one, the individual will have his or her civil status assessed according to the law of the country he or she probably feels the closest connection to, i.e. the country or origin. Back to Swedish law. According to Bogdan, the enactment of the law has been criticised for lacking rational analysis of its practical consequences, being preceded by a lively debate in Swedish media with the result of it being characterised rather by emotions.300 He maintains that the proponents of the assumption that non-recognition is beneficial for the child, often a girl, and that it protects her from the harmful effects of being married, ‘[submits] that this assumption is probably wrong in the most cases. Far

300 Bogdan, M., Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages, p. 247. 52 from feeling relieved, the young spouse may feel vulnerable and deprived of protection from her closest relatives’.301 Furthermore, as regards the harmful effects of marriage at an early age, he argues that it must be kept in mind that Swedish law does not give a spouse any ‘prerogative of a personal nature’, arguing that Swedish law does not allow a spouse to demand sex or in any way control the freedom of the other spouse.302 Rights of this kind granted by foreign law would certainly be considered contrary to Swedish public policy.303 To simply state that recognition of child marriages concluded abroad without any connection to Sweden would be to fail giving sufficient protection to children left outside the scope of the legislation, as indeed argued in the Government Bill from 2018, presupposes that non-recognition is the favourable alternative for the individual. Again, the individual often being a girl. Whether or not such an assumption as Bogdan speaks of is wrong in most cases is perhaps too much of a speculation, one that will not be further investigated in this thesis. However, it is most likely safe to say that in at least some cases a young spouse will indeed feel vulnerable and perhaps deprived of protection from those closest to her when her marriage is not recognised. A possible example of a situation in which the girl might feel deprived of protection from those closest to her would be the above mentioned case of HFD 2012 ref. 17. The girl and her partner were from Palestine and of Muslim background. The first instance, the Administrative Court (förvaltningsrätten), argued that the main reason against marriage before the age of 18 is that the young individual is not mature enough to make the considerations associated with marriage. A balancing of interests in the individual case has to be done, the Court reasoned. However, contrary to what the Supreme Administrative Court finally decided, the first instance held that considering all the circumstances weighed together, the marriage in fact ought to be recognised. Likely, the girl herself would have preferred the reasoning of the Administrative Court rather than her marriage not being recognised. Nevertheless, her being a child according to Swedish

301 Bogdan, M., Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages, p. 252.

302 Bogdan, M., Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages, p. 252.

303 Bogdan, M., Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages, p. 252. 53 law when the marriage was concluded was by the Supreme Administrative Court deemed to be more important. Nowhere in the final judgment does the Supreme Administrative Court seem to have taken into account what the girl actually wanted, but drew a clear and uncompromising line at 18 years in order to have her marriage recognised according to Swedish law. As to Bogdan’s argument that the Swedish legal system does not give a spouse any ‘prerogative of a personal nature’, i.e. the right to demand something of a physical nature or the right to control the freedom of the other spouse, this is hardly a guarantee that such behavior, likely exercised by the often older husband, will not occur. Imagine a situation in which a young girl arrives in Sweden as a refugee together with her husband from a country where it might be legal for a husband to exercise certain power over his wife. It is not unreasonable to conclude that a girl in such a situation might be hesitant, even though she might within the walls of marriage be subject to treatment constituting a crime according to Swedish law, as to rely on Swedish authorities for help. It must be a poor comfort for her to be told that ‘Well, at least it is not legal!’ if oppression of this kind is her reality. This one of Bogdan’s arguments is, nevertheless, of relevance when reviewing the law amendments of 2018. This because non-recognition of child marriage does not necessarily offer efficient protection for someone in a vulnerable situation, even though it might be easy to get that impression based on the 2018 Government Bill. Non- recognition of child marriages concluded abroad does not automatically entail that the parties to the marriage will not stay and live together as partners. Namely, there is nothing in Swedish legislation hindering a person below the age of 18 from living together with a partner, a situation covered by the Cohabitees Act (2003:376). This is discussed further in the following section.

5.2.2 Preclusion of Legal Effects of Marriage If a marriage is recognised according to Swedish legislation, a number of legal effects follow. The non-recognition of marriages will, consequently, preclude these legal effects. The most obvious effects of non-recognition, as asserted by the Legislative Council, are those of preclusion of spouses’ responsibility of maintenance, matrimonial

54 property and succession rights.304 These effects have been brought forward from other directions as well. Bogdan submits that even though the rules are gender-neutral on their face, it is reasonable to assume that in most cases it is the wife who was a child at the entering of the marriage and that she is the economically weaker spouse.305 Hence it is most likely the wife that will suffer the most from the loss of these benefits.306 As to this a counterargument brought forward in the Government Bill of 2018, which was also stressed in the preparatory works of the laws of 2004 and 2014, is that in Sweden the position of a child is guaranteed not through the institution of marriage, but through other rules of law specifically enshrining the rights and interests of the child.307 Even though current Swedish law at first sight might give the appearance of being a step towards gender equality, the fact that it is most likely girls, just as Bogdan points out, that are going to suffer the most from the consequences of the latest Swedish legislation must not be trivialised. While child marriage itself is a question of gender equality, the preclusion of legal effects of marriage is arguably also a question of gender equality that has to be taken into account when evaluating the law. In addition it was argued in the Government Bill that some of the consequences can be rendered through the Cohabitees Act (2003:376) if the parties to the marriage not recognised lived together and also through the creation of a will.308 This argument, that some of the consequences of non-recognition can be rendered through the possibility for a couple to live together, might strike one as quite surprising in light of the aim of the legislation being to ‘protect’ children from marriage. Jänterä-Jareborg argues that ‘the eagerness in Sweden to categorically protect children from marriages is difficult to reconcile’ with the Swedish legal system’s tolerance in respect of children’s cohabitation.309 The fact that it is put forward in the Government Bill as something

304 Government Bill, Prop. 2017/18:288, Annex 4 (Opinion by the Legislative Council), pp. 46–47. Chapter 6, Chapter 7 § 1 Marriage Code, Chapter 3 § 1 Inheritance Code.

305 Bogdan, M., Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages, p. 252.

306 Bogdan, M., Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages, p. 252.

307 Government Bill, Prop. 2017/18:288, p. 14 with reference to Prop. 2003/04:48, p. 28 and Prop. 2013/14:208, p. 24.

308 Government Bill, Prop. 2017/18:288, p. 18.

309 Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, p. 272. 55 positive that some of the consequences will be rendered through the Cohabitees Act further strengthens this argument. After all, it is difficult to argue in favour of non- recognition of child marriages with reference to the harmful effects of marriage, but without further ado allow children to live together with their adult partner. Furthermore, the creation of a will presupposes that the parties concerned understands that there is a need to create a will. This might not always be the case if a couple do not realise that their marriage is not recognised according to Swedish law. That is to say, that even though the drafting of a will might mitigate the preclusion of legal effects of marriage when a marriage is not recognised, it is not certain that this possibility will be made use of. As mentioned above, it is not entirely improbable that some people will not realise that their marriage is not recognised according to Swedish law and consequently will not know that they need to create a will in order to secure the partner economically in case of one spouse’s passing. Reasonably, the effects of a legislation in practice must be considered when evaluating the law. As argued in the section above, the threshold for acquisition of a domicile of choice, at least from a domicile of origin, is quite high as opposed to habitual residence. If a couple live in England or Scotland but are domiciled elsewhere, a marriage then concluded abroad will be valid in the eyes of English as well as Scottish law if valid according to the domiciliary law(s). Preclusion of legal effects of marriage can obviously be avoided if a marriage is recognised.

5.2.3 Limping Marriages The fact that a marriage is recognised in one country but not in another results in so called limping marriages, possibly causing problems for the individuals concerned.310 The parties to the marriage might have become accustomed with life being married, why non-recognition could affect social, cultural and religious circumstances.311 An effect of the latest amendments to Swedish law is that limping marriages will increase in number.312 Jänterä-Jareborg submits that the individual concerned is always

310 Government Bill, Prop. 2017/18:288, p. 18.

311 Government Bill, Prop. 2017/18:288, pp. 17–18.

312 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 208. 56 negatively affected by a limping civil status, which according to her is an important aspect to bear in mind.313 For a young woman with strong connections to a country with other values, a limping family status might result in future difficulties for her.314 Such difficulties could for example be if she were to initiate a relationship with someone else than her husband as her marriage is not recognised according to Swedish law, or, have a child despite her marriage not being recognised according to Swedish law, the child then being born ‘outside of marriage’.315 It is unlikely that a couple without any connection to Sweden at the time of the conclusion of the marriage will take Swedish legislation on marriage into account, just as the Legislative Council argues. From this follows, hardly surprisingly, that limping marriages are more likely to occur when there is no connection to Sweden compared to situations in which such connection does exist. Someone with a connection to Sweden does not pose the same ‘risk’ being stuck in a limping marriage, simply because it is easier to take laws into account if you know what they are. The refusal to recognise, more or less, all marriages concluded abroad without any connection to Sweden when one spouse was below the age of 18 at the conclusion, could in light of what has been argued in fact result in the child being put in a disadvantageous position compared to someone with such a connection. This simply because it is probably less likely that someone with a connection to Sweden will marry below the age of 18 and as a result end up in a limping marriage. Recurring in this thesis is the connection between the occurrence of child marriage in Sweden and the amount of persons seeking refuge in Sweden. Not only must it be difficult for someone who was actually planning to move to Sweden to grasp what the consequences of Swedish private international law will be for him or her as regards his or her civil status, but it must be even more difficult for someone who perhaps did not have as much time to plan his or her emigration to foresee these consequences. In the event of having to leave or even flee one’s country of origin, surely sometimes in an abrupt and hasty manner, it is most likely not the case that private international law and

313 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 208.

314 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, pp. 208–209.

315 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 209. 57 marriage impediments is the first thing taken into consideration when deciding in which country to seek refuge. A couple seeking refuge in a receiving country might already be married upon leaving the country from which they flee, or, a girl might marry on her way to a country of refuge, as being married might be safer for a young, female refugee. Under such conditions there is barely no way to escape falling through the cracks, so to speak, ending up in a marriage that still exists and is very much recognised in several countries, but not recognised in the country of refuge, which would be Sweden in this case. Because important to remember is that the marriage is in no way dissolved upon arrival in Sweden. Namely, there is no marriage to dissolve, but it is simply not recognised. In other words, the marriage does not disappear and is very much recognised as validly concluded in several other countries throughout the world. This in itself can be quite the unsatisfactory situation for a child not wanting to be married. Since in the eyes of Swedish law the marriage does not exist it is impossible to grant a divorce. One might think that this is not a problem since non-recognition entails preclusion of legal effects of marriage. But, again, the marriage is still valid in several other countries. For the individual it must be a somewhat unsatisfactory situation difficult to actually do something about. One is simply stuck in these very undesirable circumstances. As argued by the Commission of Inquiry in SOU 2012:35, it is quite reasonable that the law assumes a more restrictive approach as regards Swedish authorities’ participation to the conclusion of a marriage than their subsequent acceptance of a marriage already concluded (see section 3.2.2.1). It is also reasonable that the law assumes a more restrictive approach as to marriages concluded abroad when there is a connection to Sweden. However, current Swedish legislation does not allow for such distinctions when it comes to child marriages. Domicile, rather than current Swedish legislation not requiring any connecting factors at all for non-recognition, at least leaves the possibility of divorce open since a marriage concluded abroad is recognised as long as it is valid according to the domiciliary law(s) at the time of the conclusion. This would be the case also with previous Swedish legislation as long as habitual residence in Sweden was not acquired at the time of the conclusion of the marriage.

58 The possible consequences of the latest Swedish legislation was nevertheless argued in the latest Government Bill not to be severe enough as to render a general prohibition inappropriate as a way to deal with the phenomenon of child marriage.316 The interest of discouraging child marriage was considered to simply weigh heavier.317 The laws of England and Scotland are, in this sense, more pragmatic than current Swedish legislation. This because they offer the possibility to move across borders without the same risk of one’s marriage not being recognised in another country. The laws of England and Scotland can be said to ease the moving across borders, something which current Swedish legislation definitely does not. As regards previous Swedish legislation, domicile as a connecting factor has the capacity, as already argued above, to ‘follow you around’ in a way that habitual residence does not. This means, as said, that an individual who lives, but has not acquired domicile, in England or Scotland can marry abroad and have the validity of the marriage assessed according to the law of the domicile instead of English or Scottish law. A telling example of this is already mentioned above, namely the case of De Bonneval v. De Bonneval. Returning to Swedish law, one could argue that if a marriage is not recognised in Sweden, there is nothing stopping a couple from getting married ‘again’ once they both turn 18. This argument was i.a. put forward in the Government Bill on the latest amendments of the Swedish law.318 This is nevertheless a simplification of something that in reality can be much more complex. ‘How so?’, one might ask. The people who are targeted with current Swedish legislation come predominately from Muslim countries.319 In order to remarry in a marriage that is valid according to Islam, a couple must first divorce, then marry someone else and then divorce again, to finally marry their first partner once again.320 Consequently, ‘remarrying’ might not be an option for individuals targeted by the law, at least not a very (to say the least) practical one.

316 Government Bill, Prop. 2017/18:288, p. 18.

317 Government Bill, Prop. 2017/18:288, p. 18.

318 Government Bill, Prop. 2017/18:288, p. 18.

319 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 360.

320 Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, p. 360. 59 When it comes to countries with widely different cultures and legal systems that vary greatly it might be tempting to argue that Western countries with secular family law, such as Sweden, have no obligation whatsoever to take into account laws governing family and relationships in other legal systems, often emanating from religion or cultures very different from the own legal system. And one might rightly think so. However, when putting forward such an argument one should at the same time ask oneself: for whose sake was the legislation in question brought to be? Who is the legislation in question supposed to protect? As evident from the preparatory works to the latest amendments, it is the interests, well-being and rights of the child that seems to be the main concern. Imposing a provision on a person, with little – if in practice any – possibility to take into account the circumstances in the individual case, knowing that it might very well have serious consequences for the life of this person, must have really good reasons for it. If not, it is most likely a decision based on moral principles and perhaps not so much a balancing between the advantages with the legislation and its practical consequences. It is hardly crystal clear that the advantages of non-recognition outweighs the disadvantages, which the discussion above suggests. What further indicates that the legislation of 2018 might be the result of a debate heated with emotions rather than, as Bogdan puts it, rational analysis of its practical consequences, is that the Government chose to pursue their proposal notwithstanding the criticism it received by the Legislative Council and its choice not to endorse the proposal. The concerns and criticism towards the proposal was brushed off in the Government Bill with reference to the aims with the legislation weighing heavier than the implications of it, rather than actually being addressed and problematised. Here it is again useful to mention the laws of England and Scotland. Domicile as a connecting factor does reasonably not result in as high of a number of limping marriages as either previous or current Swedish legislation. When the validity of a marriage is assessed according to the law(s) of the antenuptial domicile of each spouse, there is no risk of emergence of a limping civil status. In this way, in cases when no domicile in England or Scotland has been acquired, private international law on marriage in England and Scotland do not necessitate knowledge about it in order for the individual to avoid a limping marriage since the domicile ‘follows’ the propositus.

60 Knowledge about the law of one’s own domicile is in a case such as this sufficient for the marriage to be recognised as valid according to the laws of England and Scotland. Nevertheless, as pointed out in section 5.2.1 above, in some cases it is difficult to determine domicile. Furthermore, the problem of limping marriages can still arise when the propositus indeed has acquired a domicile of choice in England or Scotland and thereafter marries abroad, since it is the law of the antenuptial domicile of each spouse that governs capacity to marry. This could for example be the case if a refugee plans to live in England or Scotland for an indefinite future without any intention to ever return to the homeland where he or she probably has his or her domicile of origin. In chapter 4, not only the dual domicile theory was elaborated, but also the intended matrimonial home theory. The latter theory could possibly result in a higher number of limping marriages than the dual domicile theory. If a couple marries in a country but have the intention to later move to another country, is is not unlikely that the couple believes that as long as the marriage is valid according to the law of the country where it was solemnised, the lex loci celebrationis, it is also valid according to the law of the intended matrimonial home. This would, however, not necessarily be the case. For example, if, hypothetically, the couple in the above mentioned case of Mohamed v. Knott at the time of the conclusion of the marriage had the intention to move to England, the intended matrimonial home theory would have resulted in non-recognition and hence, a limping marriage. Nevertheless, since both parties had their domicile in Nigeria when the marriage was solemnised, the marriage was indeed recognised as the dual domicile theory was applied.

5.2.4 International Commitments 5.2.4.1 Convention on Rights of The Child Recurring in the preparatory works to the latest amendments in favour of restricting the possibility of recognition of child marriage even further was reference to the Convention on Rights of the Child. It was ratified by Sweden in 1990 and incorporated as Swedish legislation directly applicable as of January 2020.321 As briefly discussed in section 1.2, according to Article 1 in the Convention a person below the age of 18 is to

321 Act (2018:1197) on the United Nation’s Convention on the Rights of the Child. 61 be considered a child, unless majority is attained earlier according to the law applicable to the child. The Convention does not, however, contain a provision explicitly prohibiting child marriage. Nevertheless, State Parties have agreed to take a number of measurements in order to protect the rights of children, to take all effective and appropriate measures in order to abolish traditional practices prejudicial to the health of the child, to take all appropriate measures, there amongst legislative, to protect children within the state’s jurisdiction from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. This according to article 19 of the Convention. Furthermore, according to article 3, in all actions concerning children the best interest of the child must be a primary consideration. In the terms of reference to the Commission of Inquiry before the amendments carried out in 2019, it was stated that child marriage poses a risk to the rights of the child according to the Convention since marriage at a young age risks to constrain a child’s rights to education, life and development.322 The Convention was also emphasised by the Commission of Inquiry itself, asserting that the UN Committee on Rights of the Child has identified child marriage as a traditional practice prejudicial to the health of the child.323 In light of this, child marriage was in the Government Bill to the latest amendments argued to be contrary to the Convention.324 It was furthermore argued that all children within a State’s jurisdiction, without discrimination of any kind, should equally enjoy the rights covered by the Convention.325 According to its Article 2(1), the Convention itself prohibits any discrimination. As evident from chapter 3, according to Swedish law prior to 2019, the age of 18 in order to marry applied for everyone if the marriage was solemnised in Sweden or, if solemnised abroad, there was a connection to Sweden at the time of the conclusion. In the aforementioned Government Bill from 2018 it is implied that if this restriction would not apply to someone below the age of 18 who married abroad without any

322 Terms of Reference, Dir. 2017:25, p. 4.

323 Government Official Report, SOU 2017:96, p. 11.

324 Government Bill, Prop. 2017/18:288, p. 13.

325 Government Bill, Prop. 2017/18:288, p. 13. 62 connection to Sweden, this would contravene the Convention on Rights of the Child as the law would be discriminatory. What is important to keep in mind, however, is that the situations, one in which there is a connection to Sweden and one in which there is no such connection at the conclusion of the marriage, are de facto not the same. According to the Swedish encyclopedia Nationalencyklopedin, discrimination means a ‘[…] deviation from the principle that like cases should be treated alike’.326 Furthermore, according to Chapter 1 § 4 of the Swedish Discrimination Act (2008:567), discrimination is to be understood as the disadvantageous treatment of someone in contrast with the treatment of someone else in a comparable situation.327 Arguably, the prevention of conclusion of certain marriages within a country as well as the prevention of persons with a connection to the country to marry abroad, is not comparable to non-recognition of marriages lawfully concluded abroad without there being any connection whatsoever to the country in question. This simply because, once again, the situations are not the same. Arguably they are not even comparable. Unless the definition of discrimination is to be understood differently in the light of the Convention on Rights of the Child, it is difficult to argue that as a main rule no child marriages, without making any distinctions between them, should be recognised because it might be discriminatory to do otherwise. Jänterä-Jareborg submits that there is a risk that the group affiliation of ‘children’, meaning everyone below the age of 18 years, is given priority over what is best for the individual child as well as the child’s own will.328 The culture in which the child has grown up is without further ado run over without any room for consideration as to the circumstances in the individual case.329 There is a risk, she continues, that the legislation will actually come into conflict with the Convention because of this.330 This argumentation shows that it is by no means obvious that it is contrary to the Convention on Rights of the Child to allow recognition of child marriages concluded

326 The author’s translation from ‘[…] avsteg från principen att lika fall skall behandlas lika.’.

327 Chapter 1 § 4 of the Swedish Discrimination Act (2008:567) ‘[…] diskriminering: att någon missgynnas genom att behandlas sämre än någon annan behandlas, har behandlats eller skulle ha behandlats i en jämförbar situation […]’.

328 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 198.

329 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 198.

330 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 198. 63 abroad without any connection to Sweden. Rather, it might in fact be contrary to the Convention to refuse recognition on a regular basis of such marriages. The possibility of such perfunctory non-recognition of, more or less, all child marriages in fact being contrary to the Convention is not at all mentioned in the preparatory works to the latest amendments. Instead, previous Swedish legislation possibly being discriminatory was left unquestioned. Interesting enough, in the above mentioned case HFD 2012 ref. 17, with its very stringent interpretation of what constitutes special reasons, nowhere in the judgement seems the court to actually have taken into account what the girl, who was only ten days away from becoming 18 years old at the conclusion of the marriage, actually wanted. In light of this judgment, there seems to be a magical line to be found at 18 – and not a day earlier! As Jänterä-Jareborg points out, little room is left for considerations of circumstances in the individual case. If the Supreme Administrative Court ruled as it did already in 2012, even less room for consideration of the circumstances in the individual case is left after the latest amendments to Swedish law. It is important to point out that despite the Convention stipulating as a main rule that everyone below the age of 18 is to be considered a child, both England and Scotland allow marriage at an earlier age. This is so in cases of one or both of the spouses being domiciled in either of the two jurisdictions where the age limit of 16 years applies, and in cases when both spouses are domiciled elsewhere, in which case the age limit of that jurisdiction applies. Foreign domiciliary law might very well allow marriage at an even younger age than 16, as was the case in Mohamed v. Knott. Keeping in mind that the UN Committee on Rights of the Child has defined child marriage as a traditional practice prejudicial to the health of the child, it could be argued that current laws on marriage in both England and Scotland, allowing an English or Scottish domiciliary below the age of 18 to marry as well as recognising such marriages concluded abroad, is not in line with the Convention. A distinction may very well be drawn between marriages concluded in a country or marriages concluded when there is a connection to a country on the one hand, and marriages without any such connection on the other. While these situations do not necessarily have to be treated alike, as argued above, it is quite another thing for a

64 country to allow an age limit below 18 in order to marry for their own citizens or persons with a connection to the country, such as individuals domiciled in there.

5.2.4.2 European Convention on Human Rights Article 8 of the European Convention on Human Rights and Fundamental Freedoms

(ECHR)331 ensures the right to respect for family and private life. In light of the ECHR, the 2018 legislation has been criticised from several different directions, the Swedish Legislative Council being one of the critics. Any interference with the exercise of the right guaranteed by the article has to be necessary and proportionate in relation to the aims with the legislation, according to article 8(2), as also emphasised by the Legislative Council. In the Government Bill from 2018 it was however argued that the escape clause assures that the new legislation will not come in conflict with to the ECHR.332 The Legislative Council, nevertheless, stressed that the legislation entails that a foreign couple that married while at least one of the parties were below the age of 18 and that only a long time after the conclusion of the marriage moves to Sweden will be affected by unforeseen legal consequences, difficult for the individual to comprehend.333 The Council argued that a couple wanting to avoid the uncertainty that follows with the new amendments would either have to marry once again in Sweden (which can be difficult in some marriages, as explained in section 5.2.3), or, assert that extraordinary reasons are at hand every time the marriage is assessed before a competent authority.334 However, the Council continued, in light of not only the very restrictive interpretation of the escape clause, but also the contradictory and scanty motives behind it, the uncertainty of whether a marriage will be recognised is only further entrenched by the clause.335 In other words, the Council did not agree that the escape clause assures that the legislation will not contravene the ECHR.

331 Convention for the Protection of Human Rights and Fundamental Freedoms, Opened for signature in Rome on 4 November 1950 and came into force in 1953.

332 Government Bill, Prop. 2017/18:288, p. 26.

333 Government Bill, Prop. 2017/18:288, Annex 4 (Opinion by the Legislative Council), pp. 46–47.

334 Government Bill, Prop. 2017/18:288, Annex 4 (Opinion by the Legislative Council), pp. 46–47.

335 Government Bill, Prop. 2017/18:288, Annex 4 (Opinion by the Legislative Council), p. 47. 65 Like the Legislative Council, Jänterä-Jareborg asserts that ‘[a] very strict interpretation […] risks conflicting with the requirement of proportionality under the ECHR […]’.336 Just as with the Convention on Rights of the Child, there is a risk that the group affiliation of ‘children’ is given priority over what is best for the individual child as well as the child’s own will, which might be contrary also to the ECHR.337 In light of the above discussion of consequences that non-recognition of child marriages may lead to, perhaps it is not proportionate to draw an, in practice, uncompromisable line at 18 years in order to marry or have one’s marriage recognised, as the Swedish Supreme Administrative Court did in 2012 and as Swedish authorities will continue to do, especially after the latest amendments to the Swedish legislation. Worth emphasising is furthermore that Swedish law prior to 2019 did not entail that all child marriages concluded abroad without any connection to Sweden had to be recognised. Legal remedies were available to hinder recognition where it would have been inappropriate. The public policy-reservation could very well be applied in cases in which recognition would not be preferable. In this way, previous Swedish law allowed for consideration of nuances. Reasonably there is a difference between recognising a marriage where one spouse had barely reached puberty at the conclusion of the marriage and to recognise a marriage in which the child was 10 days away from being 18 at the conclusion. Furthermore, forced marriage is, and was also prior to the latest law amendments, illegal according to Chapter 4 § 4 c of the Criminal Code (1962:700). Furthermore, just as argued as regards the Convention on Rights of the Child, not treating everyone exactly the same does not necessarily entail breach of a convention. On the contrary, treating everyone exactly the same despite their circumstances not being even slightly the same may instead lack proportionality. It might be reasonable for someone with a connection to Sweden through either nationality or habitual residence to take Swedish legislation on marriage into account before marrying. However, in practice a foreign couple without any such connections will most likely not consider Swedish legislation and Swedish marriage impediments before marrying.

336 Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, p. 271.

337 Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, p. 198. 66 On this account, the usage of domicile as a connecting factor in England and Scotland can be argued to offer a perhaps more, again, pragmatic solution as opposed to both previous and current Swedish legislation. It is the antenuptial domicile that governs capacity to marry, why the validity of the marriage is assessed according to the law of a foreign domicile as long as no domicile of choice has been acquired in England or Scotland before the marriage. Living or having habitual residence in a country does not necessarily result in a domicile of choice. In comparison with current Swedish legislation, not allowing recognition of a child marriage at all even though the parties had no connection to Sweden at the time of the conclusion, domicile leaves a much wider room for recognition of such a marriage. As already stated above, the dual domicile theory in English and in Scottish law requires that both parties to the marriage have capacity according to the law of their respective antenuptial domicile. The dual domicile theory might be argued to be well- balanced since it hinders domiciliaries in either England or Scotland from marrying before the minimum age. It ‘protects’ the own domiciliaries from, according to the laws of England and Scotland, too early marriages. As for England specifically, as established in Pugh v. Pugh (see chapter 4), if an English domiciliary wants to marry a person domiciled elsewhere, the other party to the marriage must also have reached the age of 16 in order for the marriage to be recognised. Furthermore, both the English and Scottish laws ‘protects’ also individuals below the age of 16, but who are domiciled elsewhere, from marrying in England or Scotland, since neither jurisdiction recognise such marriages unless concluded abroad. However still, the dual domicile theory makes possible the recognition of child marriages validly concluded abroad. In comparison with current Swedish law, the laws of England and Scotland do, in this respect, most probably meet the requirement of proportionality according to the ECHR. Likely, so did previous Swedish legislation with habitual residence as a connecting factor, even though habitual residence differs much from domicile. Nevertheless, the public-policy reservation may be applied when the recognition of a marriage would be ‘offensive to the conscience’ of an English court (Cheni v. Cheni) or contrary to public policy in Scotland (the Family Law (Scotland) Act 2006 s. 38(4)). The recognising of a marriage validly concluded abroad in which a spouse is very

67 young is by no means a must in either English or Scottish law. Worth mentioning is that the in this thesis recurring case of Mohamed v. Knott was deciding in the late 60s. It is not entirely sure that the outcome would have been the same today.

5.3 Summation The statistics of the occurrence of child marriages in Sweden accounted for in the Government Official Report of 2012 as well as the Government Bill from 2018 was the result of what popularly is called the ‘refugee crisis’ of 2015. The placing together of young girls and their often adult husbands was condemned from several directions and the Government clearly felt that something had to be done. Even though the previous legislation was relatively new, coming into force in 2014, the legislation was amended once again. Although the consequences of the latest legislation – including the negative ones – was brought to attention in the Government Bill from 2018, the consequences were deemed not to be severe enough as to invalidate the proposal. Criticism towards it was dismissed with reference to the aims of the legislation weighing heavier than any possible negative consequences. This is a clear message that child marriages will simply not be recognised despite the costs for the individual of non-recognition. There is hardly any room for recognition even though the escape clause is supposed to render the consequences of the legislation. Previous Swedish legislation reminds of current laws in England and Scotland, but the connecting factor of domicile differs much from the connecting factor of habitual residence. The two connecting factors may very well result in different outcomes in cases that are alike as to the facts. However, neither previous Swedish law or current English or Scottish law equates all marriages. Instead they make a – perhaps very much needed – distinction between marriages concluded within the country and marriages concluded abroad but with a connection to the country on the one hand, and marriages concluded abroad without a connection to the country on the other. The laws of England and Scotland compared to current Swedish legislation is, from a legal point of view, arguably a more pragmatic approach as to child marriage concluded abroad.

68 In the following and last chapter, some concluding remarks on Swedish law compared to the laws of England and Scotland are made. Lastly, a conclusion is given of which system, if any, is to prefer over the other, and why.

6 Concluding Remarks

In the chapters 2, 3 and 4, the question of how child marriage concluded abroad is regulated in Swedish private international law on the one hand, and private international law in England and Scotland on the other, is answered. As explained in section 1.5 as regards the comparative method, one solution to an identified problem must not be ‘better’ than the other. However, as the argumentation in this thesis indicates, current Swedish legislation is not without its implications from a legal point of view. Rather, the legislation is the product of a clear moral stance and the legal consequences are but secondary. The Swedish Legislative Council, an authority consisting of judges from the Swedish Supreme Court and the Swedish Supreme Administrative Court with the task to review legislation proposals ex ante, argues that people without any connection to Sweden are most probably unlikely to take Swedish legislation on marriage into account before the conclusion of a marriage abroad. In the Government Bill from 2018 it was however stated that the purpose of the law amendments was not to prohibit other countries from allowing children to marry, but rather to enable Sweden to work as a role model through the legislation. Sweden seems to have wanted to sort of ‘pave the way’ in hope that other countries will follow its example. This can of course be considered admirable. Nevertheless, a legislation such as the one following from the amendments of 2018 necessitates that people have knowledge of not only Swedish substantive law, but also Swedish private international law, unless a person does not want to find him- or herself in the ‘judicial limbo’ of a limping marriage. As suggested in the discussion above, and as stated by Jänterä-Jareborg that a driving force behind family law reforms in Nordic countries is often not to do less than the Nordic neighbours, one might argue that the latest legislation in Sweden is a desperate attempt to move forward in the quest of giving appearance as ‘the good guy’. Not only the good guy in the eyes of other countries, but perhaps foremost in the eyes of 69 its own citizens. Something had to be done, or otherwise girls would face the same fate as the 14 year old girl, mentioned in section 5.1.2, who was placed with her adult husband of 21 years of age. While there is nothing wrong with wanting to set a limit of 18 years in order to marry, arguably there is a difference between setting an age limit for the state’s own nationals or persons with habitual residence in the country and to do the same for persons without such a connection. To equate two situations that de facto are not the same might instead result in consequences for the individual that are disproportionate in relation to the aims with the legislation. A Swedish citizen or a person with habitual residence in Sweden is not in the same way as someone without any connection to Sweden in ‘the danger zone’ of being lavished by legislation differing to such a degree from one’s own legal system that it leaves a marriage limping. Knowing that if you marry, your marriage will not be recognised, you will probably abstain from marrying in the first place until you become of sufficient age. To expect this from individuals who most likely have never sat their foot in Sweden is, at the very least, extremely optimistic. To put it bluntly, a legislation resulting in a general non-recognition of child marriages concluded abroad is a simple solution to a very complex problem. The laws of England and Scotland allow differences as regards legal systems – legal systems sometimes being intertwined with culture and religion. The same goes for previous Swedish law, even though habitual residence much differs from domicile. In the introductory chapter the case Mohamed v. Knott was mentioned. A comment made about the case was that it is easy to imagine the 13 year old girl as a future deserted and uneducated mother incapable of earning a living or bringing up her children. And child marriage might very well have such consequences for especially a lot of girls, later becoming women, throughout the world. However, not all cases are black and white. Arguably, there is a difference between admitting and accepting that there in some cases can be nuances to a situation and thereby allowing recognition of some child marriages, and blindly accepting all child marriages concluded abroad without any connection to Sweden. The laws of England and Scotland leaves room for, as expressed in the introduction in this thesis, the multifaceted phenomenon of child marriage. Current Swedish law does not.

70 Bibliography

Public Material International Conventions Convention for the Protection of Human Rights and Fundamental Freedoms, Opened for signature in Rome on 4 November 1950 and came into force in 1953. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Opened for signature and ratification by General Assembly resolution 1763 A (XVII) of 7 November 1962, Entry into force: 9 December 1964. Convention on the Elimination of All Forms of Discrimination against Women, Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979, entry into force 3 September 1981. Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990.

Government Bills Government Bill, Prop. 2003/04:48, Åtgärder mot barnäktenskap och tvångsäktenskap (Measures Against Child Marriage and Forced Marriage). Government Bill, Prop. 2013/14:208, Stärkt skydd mot tvångsäktenskap och barnäktenskap samt tillträde till Europarådets konvention om våld mot kvinnor (Increased Protection against Forced Marriages and Child Marriages and Admittance to the Council of Europe’s Convention on Violence Against Women). Government Bill, Prop. 2017/18:288, Förbud mot erkännande av utländska barnäktenskap (Prohibition Against Recognition of Foreign Child Marriages).

Government Official Reports Government Official Report, SOU 2012:35, Stärkt skydd mot tvångsäktenskap och barnäktenskap (Increased Protection Against Forced Marriages and Child Marriages). Government Official Report, SOU 2017:96, Utvidgat hinder mot erkännande av utländska barnäktenskap (Extended Hindrance of against Recognition of Foreign Child Marriages). 71 Other Terms of Reference, Dir. 2012:35, Stärkt skydd mot tvångsäktenskap och barnäktenskap (Increased Protection Against Forced Marriages and Child Marriages). Terms of Reference, Dir. 2017:25, Starkare skydd mot barnäktenskap, tvångsäktenskap och brott med hedersmotiv (Increased Protection against Child Marriage, Forced Marriage and Crimes with Honour Motives).

Literature Anton, A. E., Beaumont, P. R., McEleavy, P. E., Private International Law, 3rd edition, W. Green/Thomas Reauters, 2011. Bogdan, M., Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages, Journal of Private International Law, 2019, Vol. 15, pp. 247– 256. Bogdan, M., Svensk internationell privat- och processrätt, 8th edition, Nordstedts Juridik AB, 2014. Bogdan, M., Maunsback, U., Private International Law in Sweden, 3rd edition, Kluwer Law International B.V., 2020. Cheshire, G., North, P., Fawcett, J., Private International Law, 15th edition, Oxford University Press, 2017. Crawford, E. B., Carruthers, J. M., International Private Law: A Scots Perspective, 4th edition, Thomas Reuters, 2015. Dethloff, N., Child Brides on the Move: Legal Responses to Cultural Clashes, International Journal of Law, Policy and the Family, 2017, Vol. 32, pp. 302–315. Dicey, A.V., Morris, J.H.C., Collins, Lord of Mapesbury, The conflict of Laws, 15th edition, Sweet & Maxwell, 2012. Jänterä-Jareborg, M., Att inte svika gifta barn är en svår balansgång, Brattström, M., Jänterä-Jareborg, M. (eds.), För barns bästa, 1st edition, Iustus Förlag AB, 2017. Jänterä-Jareborg, M., Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 ‘Refugee Crisis’, Douglas, G., Murch, M.,

72 Stephens, V. (eds.), International and National Perspectives on Child and Family Law, Essays in Honor of Nigel Lowe, Intersentia Ltd, 2018. Jänterä-Jareborg, M., Populism and Comparative Law as Tools Not to Recognise Foreign Marriages, Journal of International and Comparative Law, 2019, Vol. 6:2, pp. 347–354. Jänterä-Jareborg, M., Sweden: Non-Recognition of Child Marriages Concluded Abroad, IPRax, 2020, No. 3, pp. 267–273. Kleineman, J., Rättsdogmatisk metod, Nääv, M., Zamboni, M. (eds.), Juridisk Metodlära, 2nd edition, Studentlitteratur AB, 2018. Murphy, J., Rationality and Cultural Pluralism in the Non-Recognition of Foreign Marriages, International & Comparative Law Quarterly, 2000, Vol. 49, pp. 643–659, with reference to Deech, R., Immigrants and Family Law, New Law Journal 110, 1973. Samuel, G., An Introduction to Comparative Law Theory and Method, Hart Publishing Ltd, 2014. Sayed, M., Tvångsäktenskap och barnäktenskap — en analys av det svenska rättsläget, SvJT 2015, pp. 479–495. Van Coller, A., Child Marriage – Acceptance by Association, International Journal of Law, Policy and the Family, 2017, Vol. 31, pp. 363–376. Zweigert, K., Kötz, H., An Introduction to Comparative Law, 3rd edition, Clarendon Press, 1998. Örücü, E., Methodological Aspects of Comparative Law, European Journal of Law Reform, 2006, Vol. 8, pp. 29–42.

Case Law Courts in Sweden HFD 2012 ref. 17.

Courts in the U.K. De Bonneval v. De Bonneval, 163 E.R. 296 (1838). Brook v. Brook, 65 E.R. 746 (1858). Mette v. Mette, 164 E.R. 792 (1859). Brook v. Brook, 11 E.R. 703 (1861). 73 Udny v. Udny, (1866-69) L.R. 1 Sc. 441 (1869). Sottomayor (otherwise De Barros) v. De Barros (No.1), (1877) 3 P.D. 1. Paine, Re, [1940] Ch. 46 (1939). De Reneville v. De Reneville, [1948] P. 100 (1947). Pugh v. Pugh, [1951] P. 482 (1951). Cheni (otherwise Rodriguez) v Cheni, [1965] P. 85 (1962). Alhaji Mohamed v. Knott, [1969] 1 Q.B. 1 (1968). Radwan v. Radwan, [1973] Fam. 35 (1972). A Local Authority v. X, 2013 WL 5904627 (2013). AR v. RN [2015] UKSC 35.

Internet Sources Malmberg, F., Ett barn kan inte samtycka till äktenskap, Svenska Dagbladet, 2016–02– 16, https://www.svd.se/ett-barn-kan-inte-samtycka-till-aktenskap.

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