Finland

Sources of Law

There are several provisions, Acts and Decrees concerning family law in Finland. The main ones are as follows:

Children law

• the Paternity Act
• the Adoption Act
• the Child Custody and Rights of Access Act
• the Act on the enforcement of a decision on child custody and the right of access
• the Child Maintenance Act

Matrimonial law

• the Marriage Act
• Act on Registered Partnerships

Jurisdiction

Brussels II applies.

The following applies only in so far as not otherwise provided for in Brussels II.

Under The Marriage Act, the Finnish court has jurisdiction, if

• either spouse is domiciled in Finland, or
• the petitioner has been domiciled in Finland or otherwise has a close link to Finland and is unable to obtain a divorce in the foreign state where either spouse is domiciled, or this would cause unreasonable inconvenience to the petitioner, and the admissibility of the matter in Finland is justified in view of the circumstances.

The Finnish court has jurisdiction on a matter pertaining to the personal legal consequences of marriage if the defendant is domiciled or habitually resident in Finland, and on a matter pertaining to maintenance also, if the person entitled to maintenance is domiciled or habitually resident in Finland.

The Finnish court has jurisdiction on amatter pertaining to matrimonial property, if:

• the respondent is domiciled or habitually resident in Finland,
• the petitioner is domiciled or habitually resident in Finland and the law of Finland is to apply on the matter pertaining to matrimonial property,
• the last common domicile or place of habitual residence of the spouses was in Finland, and one of the spouses is still domiciled or habitually resident there,
• the property is located in Finland; or
• the respondent accepts that the matter be admissible in Finland.

Under The Child Custody and Rights of Access Act a Finish court may consider a case, if the child is habitually resident in Finland. A child, who has lived in Finland continuously for at least one year immediately prior to the case being brought before the court, is considered to be habitually resident in Finland.

Even if the child is not habitually resident in Finland, a Finnish court may consider a case relating

to child custody or rights of access if the child lives in Finland or if there is good reason for it; or if the child has, with regard to all the relevant circumstances, another close connection with Finland.

Domicile and Habitual Residence

"Habitual residence" and "domicile" are very similar. The use of these terms is not systematic in Finnish legislation, especially in translations of Conventions.

Conflict of Law/Applicable Law to be Applied

The personal legal consequences of marriage: the law of the state where both spouses are domiciled will apply. If they are not domiciled in the same state, the law of the state where both spouses were last domiciled during the marriage will apply. In other situations the law of the state to which they have the closest link will apply.

Matrimonial property matters: Unless otherwise agreed, the law of the country which, on marriage, became the domicile of both spouses will apply. If the spouses subsequently changed domicile, the law of the new domicile would apply providing the spouses have resided there for at least five years. The law of the new domicile would apply immediately if the spouses have been domiciled there earlier in the marriage or if both of them were citizens of the new domicile. If no country has become the domicile of both spouses, the law of the country to which, taking all circumstances into account, the spouses have the closest link will apply.

Spouses can also agree on which law should apply. They can choose the law of the country in which one or both of them are domiciled or were last domiciled or they can choose the law of the country in which one of the spouses is a citizen of at the time of the agreement. The agreement must be in writing in order to be valid.

Pre-Nuptial Agreements

Spouses can sign agreements during the marriage and engaged people can sign agreements prior to marriage. These agreements can excludeproperty from the marital right. Conversely, they can also restore the marital right to property previously excluded.

An agreement must be in writing and two witnesses are required.

For an agreement to be valid, it must to be properly registered at the local Register Office.

Divorce

A spouse is always entitled to obtain a divorce. No ground is required. A spouse cannot prevent the other spouse from obtaining a divorce by objecting to it. A six month reconsideration period is required in most cases. After 6 months either spouse may demand a divorce independently.

Spouses have the right to a divorce without a reconsideration period if they have lived separately for a continuous period of two years.

In connection with divorce proceedings, a spouse can request orders for maintenance, child custody ,rights of access and for an estate distributor to be appointed. Alternatively they can agree on these matters or even leave them unresolved and later have separate judicial proceedings.

Finances/Capital/Property

According to the Marriage Act each spouse owns his/ her own property, received before or during the marriage, regardless of the form of conveyance. They have marital rights over each other’s property , although their debts remain separate. They are however jointly liable for any debts incurred for the maintenance of the family. If the property is used as the common home, the owner spouse has to obtain the other spouse’s consent in order to transfer it elsewhere,.

As a general rule, the net property is to be divided in two during the dissolution of the marriage. The marital right can be removed by a marriage agreement or by a clause or testamentary disposition linked to a gift or a will.

The spouses can agree on the distribution of matrimonial property or it can be executed by an estate distributor, normally a lawyer appointed by the court.

Finances/Maintenance

The spouses have a mutual maintenance obligation towards one another. A spouse may ask for maintenance during the marriage or in connection with divorce. Involuntary maintenance, though possible according to the Marriage Act, is practically non-existent.

Child Maintenance

According to the Child Maintenance Act, a child has the right to sufficient maintenance. Maintenance means the satisfaction of the material and spiritual needs of the child as well as his care and education and payment of the resulting costs. The parents are responsible for the maintenance of the child according to their abilities.

Consideration shall be given to the parents’ age, ability to work and amount of assets available to them. Consideration shall also be given to their other statutory maintenance responsibilities.

There is a fixed formula for calculating maintenance, an instruction given by the Ministry of Justice. It is not legally binding but most courts require the parties to use it.

A claim for child maintenance can be handled separately. It may also be presented in connection with paternity, divorce or custody and rights of access proceedings.

Cohabitants

There isn't a specific law that governs cohabiting couples as such. In the field of public law there are several statutes that recognise cohabitation as a significant legal relationship.

In private law, cohabitees are considered to be 'strangers' to each other. Their property is to be divided according to the general principles of civil law. Any registered property belongs to the titleholder. Other property is divided according to the acquisition and funding principles.

Civil Partnership/Gay Marriage

The Act on Registered Partnerships came into force on 1 March 2002 and for the most part contains the same legal provisions as those that govern marriage. Same sex couples cannot however have a religious marriage ceremony, adopt a child together or take a common surname. However, from 1 September 2009, a partner in a civil partnership can adopt the other partner's child.

With thanks to Hilkka Salmenkylä of Asianajotoimisto Juhani Salmenkylä Ky - Attorneys at law, PL 4, 00661 Helsinki. Finland. www.salmenkyla.fi