The changing status of the family in Sweden over the
past 100 years can be summarized through five transitions:
-
From a regime where the family
was an open expression of Christian values with claims of its own to a
regime that is intentionally secular and designed to protect the interests of
the individual;
-
From a legal order that gave
preference to the property and inheritance claims of blood relations and
lineage to one giving preference to the claims of the surviving spouse;
-
From a regime that assumed a
breadwinning husband/father and a homemaking wife/mother to a regime
giving first priority to gender equality, universal adult employment, and self
support;
-
From a legal order that
encouraged marriage as an economic partnership resting on a vital home economy to
a regime dedicated to what one analyst calls "statisation,"[1]
where the state deliberately takes over family functions and encourages the economic independence of married adults and universal dependence on the
welfare state;
-
And from a regime
that presumed marriage to be exclusively heterosexual to one that grants
nearly equal status, benefits, and obligations to same-sex couples.
The story is one highlighting the interaction of
ideology and law-making.
BEFORE 1920
The foundation of Swedish law remains a vast statute
called Sveriges rikes lag, enacted in 1734 but now with innumerable
amendments.[2] Under the assumption of a "common
estate," this measure long codified the inferior status of women relative
to men in matters of earnings and property.
Despite some liberalization in the late 19th Century, the
Swedish husband until 1920 still held the right to control and administer the
common estate during marriage.
Reflecting the importance of land and lineage in the old regime, the law
also excluded from the common estate real property acquired before marriage or
by inheritance during marriage. In the
then-rare cases of divorce, the marital estate would be divided equally,
although marital misconduct such as adultery could result in penalties imposed
on the offender.[3]
THE MARRIAGE CODE OF 1920
In 1918-19, The Kingdom of Sweden experienced a
bloodless democratic revolution.
Following mass protests in the streets, the King surrendered virtually
all of his power to Parliament. The
adoption of universal adult suffrage in 1920 extended the vote to women. And Parliament also adopted a new Marriage
Code in 1920.
This Code built on the idea of the marital home as
an economic partnership, with husband and wife equal in rights but different in
function. Relative to property, the
1920 Code adopted the concept of "deferred community." The prescribed marital property system
rested on the idea of "separate administration but equal division for one
and all." The measure abolished
the automatic co-ownership of property during marriage as well as the position
of the husband as the dominant administrator.
Rather, each spouse would control and administer the property that he or
she owned at the time of marriage or gained later. Notably, the 1920 Code also embraced the idea of independent
liability; spouses were not held responsible for each other's debts
(except for educational expenses for their children and certain direct
household expenditures). The Code
expanded the definition of marital property to include property
acquired before marriage or by inheritance during marriage. On the dissolution of the marriage through
death or divorce or by mutual petition, all marital property would be
divided equally, although the Courts retained the power to punish one or the
other spouse for marital misconduct.
Importantly, the Code did lay upon the husband a special responsibility
for economic support of his wife and children.
Overall, the 1920 Code aimed at creating a relatively simple property
system that minimized disputes and lawyering and encouraged gender
specialization in the home. It was
ideally suited to a people committed to nearly universal marriage and the
avoidance of divorce.[4]
RADICAL CURRENTS IN THE 1930'S
During the early 1930's, a declining marriage rate
and a sharply falling fertility rate led to calls for radical changes in the
Swedish home. For example, the feminist
Social Democrat Alva Myrdal generated a furor by calling for
"collectivized homes" for Swedish families, where young mothers would
join fathers in the full time labor force, with infants and toddlers cared for
in common nurseries, and with meals prepared in collectivized kitchens (and she
actually saw such facilities through to construction). With husband Gunnar Myrdal, she co-authored
in 1934 the book Kris i befolkningsfrågan ("Crisis in the Population
Question"). In order to raise
Sweden's birthrate, they said, the natures of marriage and family needed to be
radically changed. Fathers should be
freed from their "breadwinner" role; mothers freed from "homemaking." All adults should work, and massive new
state welfare benefits--child allowances, daycare subsidies, universal health
care, low interest 'marriage loans', and so on--should pay the costs of
parenthood. The marital home, under
their scheme, would largely cease to be a significant economic unit. Working through The Royal Population
Commission of 1935 and the Swedish Parliament's Women's Work Committee, the
Myrdals enjoyed a remarkable influence for the balance of the decade.[5]
"ERA OF THE SWEDISH HOUSEWIFE"
By 1940, however, their ideas were in retreat. The onset of World War II and Sweden's
perilous position as a "neutral" nation surrounded by Nazi German
conquests encouraged a conservative nationalism. Relative to the family, older ideas found in the labor
unions--that "women were to be liberated from the labor market
rather than liberated to participate in it" and that men deserved
to earn a living "family wage"--regained popularity. Feminist analysts now call the 1940-67
period "the era of the Swedish housewife." Public policy encouraged the full-time care of small children at
home. The marriage rate climbed, while
the average age at first marriage fell.
Fertility also rose: Sweden's mini-Baby Boom. As late as 1965, only three percent of all Swedish
preschool children were in some form of non-parental day care. The "traditional Swedish family,"
encouraged by The Marriage Code of 1920 and by popular values, seemed solid.[6]
RADICAL CHANGE
Yet the late 1960's experienced new waves of radical
change: So-called "Eurocommunism" was on the march, while Red
Brigades terrorized Italy and West Germany, and France was torn apart by the
New Left riots. Meanwhile, Christian
values--summarized by one analyst as "responsibility, sacrifice, altruism
and the sanctity of long-term commitments [such as marriage]"--rapidly
gave way in Western Europe to a militant "secular individualism"
focused on the desires of the self.[7]
Sweden also entered into what one leading historian,
Yvonne Hirdman, calls its "Red Years," 1967-1976.[8] At their heart was a massive "gender
turn" that would radically alter the nature of marriage in Sweden. In 1968, a joint report by the Social
Democratic Party and the trade union alliance (the LO) concluded that
"there are…strong reasons for making the two breadwinner family the norm
in planning long-term changes within the social insurance system."[9] The next year, the same Alva Myrdal chaired
a major panel "On Equality" for the Social Democrats. Its report concluded that '[i]n the society of
the future,…the point of departure must be that every adult is responsible for
his/her own support. Benefits
previously inherit in married status should be eliminated." The Report also called for a tax policy
based on individual earnings, without preference for any so-called
"form of cohabitation."[10]
DIRECTIVES OF 1969
Accordingly, in 1969 the Swedish government resolved
to reform fundamentally its marriage law.
The Minister of Justice created a Committee of Experts and issued a set
of Directives. The Committee was to
consider whether there was still even a need for marriage law and, if so, how
it should be reconfigured. It was to
consider the "clearly anachronistic" nature of community property,
based as it was on the discarded Christian notion of "one
flesh." The Committee should
strive for a more complete secularization of domestic relations laws. It should also consider the diminished
importance of marital status in Sweden, the new imperative of "personal
fulfillment," the rising demand for divorce, declining public interest in
material property in favor of pensions, annuities, and other claims on the
welfare state, and the elevation of gender equality into the cornerstone of
Swedish social policy.[11]
AN INDIVIDUALIZED INCOME TAX
In this spirit, Sweden's Parliament approved in 1971
a fundamental reform of the income tax.
It abolished the taxation of households through the joint income tax
return premised on "income splitting" by married couples. Instead, all persons would henceforth be
taxed as individuals, without attention to marital status, dependents,
employment, or income of a spouse. This
gave Sweden the most "fully individualized taxation system" in the
developed world. In the context of high
marginal tax rates, this change also greatly benefited the two-income household
and penalized the traditional one-income breadwinner family.[12] Analysts of modern Sweden are nearly
unanimous in viewing this shift from "joint" to
"individual" taxation as the most sweeping social change in Sweden
over the last 40 years, for it "more or less eradicated" the
traditional home.[13]
THE REFORM OF 1973
On the basis of the Family Law Reform Committee's
work, Parliament approved a new measure in 1973 governing marriage and
divorce. Most legal impediments to
marriage disappeared: even half-brothers and half-sisters could marry, as could
aunts and nephews, uncles and nieces.
Only siblings and persons related by blood in unilinear descent faced
prohibition; bigamy and polygamy were also banned. The minimum marriage age for both spouses became 18. Premised on the idea of marriage as a
voluntary union, it was -- in one advocate's words -- "only natural that
if one of the spouses is dissatisfied, he or she may demand a divorce." In effect, the community or state was deemed
no longer to have a significant interest in the preservation of a
marriage. "Fault" would no
longer be considered, nor would marital misconduct have any bearing at all on
the division of property. If both
husband and wife agreed to the divorce, it would be immediately granted. If one spouse objected or if there was at
least one child under age 16 in the home, the new law fixed a mandatory
reconsideration period of six months.
"Separation" no longer had legal status. The measure assumed adult self-support and
largely ended the concept of alimony (except in limited cases where
"maintenance" payments for a set time might be required).[14]
THE MARRIAGE CODE OF 1987
Focused on property and inheritance questions, the
new Marriage Code of 1987 weakened--but did not entirely eliminate--the concept
of marriage as an economic partnership.
On the one hand, and despite pressure for a more individualistic
formulation, the new law retained the concept of "deferred community
property" found in the 1920 Code.
In principle, a spouse remained entitled to a half share in marital
property at the time of divorce or death.
The Courts gained more power to set aside pre-nuptial contracts
establishing separate property. And
surviving spouses won greater control over marital property relative to
children and other heirs, continuing the so-called "amputation of the
blood line" in Sweden.[15]
On the other hand, other provisions gave spouses
increased independence. One abolished
the obligation each had to manage and preserve matrimonial property. Joint liability for debts acquired by
household expenditures or children's education disappeared. In one commentator's words, the new Code
reflected "the increasing focus in the law itself on termination of
marriage, rather than on its preservation."[16] The 1987 Code also ended the husband's
special responsibility to support the family.
Both spouses now had a shared responsibility.[17]
THE JOINT HOMES ACT OF 1987
The Joint Homes Act was also approved in 1987. This new measure governing
"relationships similar to marriage" rested on "the principle of
neutrality toward family form." As
Ulla Björnberg explains:
The principle states that individuals are free to
develop their personal lives at their own will, to choose a
living arrangement and ethical norms for their family
life. The role of family law is
restricted to providing solutions to practical problems and to formulate
rules of a kind that can be accepted by almost all individuals.[18]
Still, the Joint Homes Act did not equate
"cohabitation" with "marriage." Specifically, cohabitators did not gain the equivalence of
"marital property rights" in inheritance or a right to claim
"maintenance" after separation.
Rather, the rules in this measure applied only to the equal splitting of
a dwelling and household goods acquired for joint use.
Still, the measure did affirm that parenthood in
consensual unions would involve rights and responsibilities equal to those in
marriage. Unmarried fathers must
register with the state. Joint custody
of children after separation is the assumption for both cohabitating and
married couples.
A novel development in the 1987 measure, though, was
that it applied to both unmarried heterosexual and homosexual
couples.[19]
THE 1995 "REGISTERED PARTNERSHIP" LAW
In 1995, the Swedish Parliament approved a law
granting same-sex couples the right to form a "registered
partnership." This represented a
civil contract providing rights and responsibilities nearly identical to those
of conventional marriage. The few
exceptions involved adoption, joint custody, and artificial insemination. "Registered partners" gained
rights to "deferred community property" and to a claim for
maintenance following a break-up of the couple.[20]
In 2000, the government severed its official ties to
the Lutheran Church of Sweden. The same
year, the Swedish government extended the "registered partnership"
option to foreign nationals residing in Sweden for at least two years. In 2002, gay and lesbian couples gained the
right to adopt children (although during the first year of this law's
operation, none had done so). Recent
Court decisions have also given legal recognition to polygamous marriages among
immigrants from Muslim countries.
SECOND THOUGHTS?
Regarding marriage, the sweep of change in Sweden
has been massive. All the same, there
are a few signs of contrary movement, even second thoughts.
In 2000-02, for example, a
curious case worked its way through the European Court system. "D," a male Swedish national, took
a job in 1996 with the E.U. Council of Ministers in Brussels. He brought with him his "registered
partner" from Sweden, and asked the E.U. Council to recognize his partner
as a "spouse" in order to claim a household allowance. Unexpectedly, the Council refused to grant
the allowance, a decision reaffirmed by the Court of First Instance, the E.U.
Advocate General, and finally the European Court of Justice. Importantly, at each stage, the decision
rested on viewing the European family "on the basis of a very traditional
model of a (male) breadwinner with a dependent spouse and children."[21]
Of similar novelty, some Swedish analysts are
beginning to suspect that "cohabitation," long viewed as a form of
liberation for women, may in fact be "a trap." As Ulla Björnberg concludes:
The neutral position in family law and in rules of
social protection presupposes that women and men have similar positions, which
they do not have. Considering the
position of women in the labor market in Sweden, the higher economic insecurity
for women in consensual unions could be a trap.
Greater certainty in employment and welfare
benefits, she continues, tied to minimal protections accorded by legal
cohabitation, have made private life more difficult and have contributed to
Sweden's perilously low birth rate.[22]
In short, it appears that the more conventional form
of marriage may be finding new and unexpected friends, even in modern Sweden.
Endnotes:
