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Presentation at the World Conference in Recife

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Selections from the Recife Congress Edited by Margaret F. Brinig, University of Notre Dame, USA TABLE OF CONTENTS PAPER 1 Pension Rights by Legal Separation or Divorce in Denmark ........................................................... 3 Gitte Meldgaard Abrahamsen, Assistant Professor, University of Aalborg, Denmark PAPER 2 Gender Inequalities and Family Solidarity in Times of Crisis (deContractualisation of Family Law) .............................................................................................. 9 Prof. dr. E. Alofs (Faculty of law, Free University of Brussels) Prof. dr. A.-L Verbeke (Faculty of law, University of Leuven) Prof. dr. D. Mortelmans (Faculty of sociology, University of Antwerp) C. Defever (Faculty of sociology, University of Antwerp) PAPER 3 Upheaval in the Family Court of New Zealand: “User Pays” and Privatization .............................. 38 Bill Atkin1 PAPER 4 Shared Parenting Laws: Mistakes of Pooling? ................................................................................ 49 Margaret F. Brinig, Notre Dame Law School PAPER 5 Marriage for Immigration in the Republic of Korea ......................................................................... 101 LEE, Dongjin PAPER 6 Children's Voices: Centre-stage or Side-lined in Out-of-Court Dispute Resolution in England and Wales? ........................................................................................................................................ 126 Jan Ewing, Research Associate at the University of Kent on the ERSC funded 'Mapping Paths to Family Justice' project. The project is led by Anne Barlow at the University of Exeter. The CIs are Anne Barlow, Rosemary Hunter (University of Kent) and Janet Smithson (University of Exeter) PAPER 7 The Structural Integrity of Marriages Following Major breaches of Trust in the First Four Years ................................................................................................................................ 143 Jan Ewing, University of Cambridge 1 PAPER 8 Delegalizing Family Law .................................................................................................................. 160 Marsha Garrison, Suzanne J. and Norman Miles Professor of Law, Brooklyn Law School Secretary-General of the International Society of Family Law Advisory Board of the Journal of Law and Family Studies and the International Advisory Board of the Child and Family Law Quarterly PAPER 9 Adoption and International Adoption: The Czech Republic Experience ......................................... 176 Zdeńka Králíčková, Associate Professor, Faculty of Law, Masaryk University, Brno, the Czech Republic PAPER 10 The Challenge of Affordable Family Law ....................................................................................... 189 Patrick Parkinson, University of Sydney, Australia President of the International Society of Family Law (2011-2014) PAPER 11 As the Family Goes: Achieving Moral and Legal Pluralism by Prioritizing Marriage .................... 215 Lynn D. Wardle, BYU Law Lynn Wardle is Bruce C. Hafen Professor of Law at J. Reuben Clark Law School of Brigham Young University and an expert in family law. He has been President (2011-14) of the International Academy for the Study of the Jurisprudence of the Family. 2 Pension Rights by Legal Separation or Divorce in Denmark. Gitte Meldgaard Abrahamsen, Assistant Professor. University of Aalborg, Denmark. Every year thousands of marriages are terminated in Denmark. In 2013, 18.872 couples were divorced1 and the divorce rate is on the rise — 46.5 percent of all marriages in Denmark today end in a divorce.2 The division of property in a divorce or legal separation proceeding is, therefore, of great importance. This paper deals with pension rights by legal separation or divorce. It examines pension rights and to what extent those rights are a part of the division of property in Denmark. It includes a short introduction to the legal framework in Denmark and to the present state of law. Some reflections on economic inequalities within the family will also be made.3 According to the Danish Act on Legal Effects of Marriage, the statutory basis for Danish family law is the concept of community property (see s. 15 (2)). Community property includes all property acquired by either spouse during the marriage as well as all property owned by either spouse at the time of the marriage. Each spouse can – as the main rule – deal freely with his or her own property within the community property assets. The main legal effect of community property is only evident when one of three things occurs: one of the spouses dies, they have a legal separation, or go through a divorce. When the marriage is terminated, community property must – as the main rule – be divided into equal shares. However, in Denmark this rule does not apply to pension rights even though pension rights are one of the biggest – if not the biggest – assets within the community of marriage today. In 2007, a new set of rules became law in Denmark.4 In framing these rules, the question was whether or not pension rights should be considered a form of capital and, therefore, be included in the division of property in case of a divorce just like other assets. Alternatively, pension rights could be excluded from the division in case of divorce due to their purpose and personal character.5 Since the emphasis in the rules was on the purpose of the pension, the general rule 1 “News”, number 144, Statistics Denmark (Nyt”, nr. 144, Danmarks Statistik), 18.th of March, 2014. 2 “News”, number 139, Statistics Denmark (”Nyt”, nr. 139, Danmarks Statistik), 18.th of March, 2014. 3 The paper is a product of my PhD thesis. For more see Abrahamsen, Gitte Meldgaard. ”Pensionsudlignende regler ved separation og skilsmisse” (Pension equalizing rules by legal separation or divorce), Jurist- og Økonomforbundets Forlag, 1. edition 2014 4 Act number 483 of June 7th 2006. 5 See Report number 1466 of 2005 “Spouses pension rights – in the division of community property” (Betænkning nr. 1466 af 2005, “Ægtefællers pensionsrettigheder – behandling på skifte af fællesbo”), p. 185 and p. 20. 3 in Danish family law today is, as the predominant rule, that pension rights are not included in the division of matrimonial property in a divorce or legal separation. Therefore, the spouses as a main rule retain their own pension rights after the divorce. This legal position differs much from general family law and is, consequently, modified by different rules that can lead to a degree of equalization of the pensions. There are three possible ways to modify the legal position on retaining their own pension right after the divorce. Firstly, if the pension right in question is not reasonable, then the value of the pension has to be included in the division.6 This follows from the fact, that in order to exclude pension rights from the equal division of property, the pension right in question has to be reasonable. However, when is a pension right regarded as reasonable? That is both in practice and theory a difficult question. Some of the answer can be found when examining whether the pension right in question corresponds to the spouse’s educational and professional background. For instance, if the spouse is a doctor, the reasonable pension right for this spouse will be the same level as for other doctors in the same type of job. A reasonable pension is thus basically what follows from a collective agreement in that specific area. If the doctor has a larger pension than this, then these “extra” contributions will be regarded as not reasonable and must be included in the equal division of property in case of divorce or legal separation. An extra contribution may be for example if the doctor, for tax reasons, pays larger contributions or creates a voluntary pension alongside his occupational pension right. [Since all normal occupational pension rights are reasonable, it follows that most pension rights in Denmark will be characterised as reasonable.7 Secondly, there is a possibility that a spouse can be allocated compensation due to the pension situation. Two different types of compensation are possible. The first one is called “fællesskabskompensation” which here is freely translated into joint-effort compensation. As the name suggests, this is a compensation that may be allocated as a result of a joint effort for the family. The joint effort, in this context, is when one spouse has been absent from the labour market in order to take care of the family due to a maternity or paternity leave or part-time employment. It could also be because of the other spouse’s employment situation. The absence from the labour market may result in lack of – or smaller –pension savings for the caretaking spouse. Compensation is then possible when the sacrifices due to the marriage are the reason for a loss in pension contributions. This also means that compensation is ruled out if the 6 If the marriage has been short, which means less than five years, all pension rights can be excluded from community property (see cf. the Danish Act on Legal Effects of Marriage, s. 16 c.) 7 See Report number 1466 of 2005 “Spouses pension rights – in the division of community property”, p. 179. 4 reduction in the pension savings is due to illness or unemployment. But there are several other conditions that are to be met before compensation can be allocated. An example of this: the absence from the labour market must have taken place during the marriage –
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