Land registry and family home protective rules

Land Registry and the family home protective rules

According to the Swedish marriage code, a spouse may not transfer or mortgage matrimonial property without the consent from the other spouse. In general, all property is matrimonial property if the spouses have not signed and registered a prenuptial agreement or a marriage agreement, at the Swedish tax agency. Note that the shared housing (common residence) is especially protected.

Consent would be needed even if it is private property due to a registered prenuptial agreement or a marriage agreement. Property that is private due to a regulation in a gift deed or a will, may be transferred or mortgaged even if the property is the spouses shared housing. Note that it is not possible to stipulate such terms in a gift between the spouses, it has to be made by a third party.

Other Overriding mandatory provisions in family law

Apart from what has already been described about the legal requirements of consent from the other spouse regarding transfer and mortgage of property. The Swedish law also provides protection against leases and usufructs and not only regarding immovable property. Consent is also needed for site lease holds, condominiums etc.

The protection of shared housing (consent is required) applies even if foreign law is applicable. Such protection also gives the right to take over the property (shared housing) by division of matrimonial property if the other spouse can proof that he or she has the greatest need.

Registered partners are treated exactly the same as married couples.

Practical case

Pietro had inherited a house from his parents’ succession. He is registered in the land book as sole owner. After that, he marries Sofía and they establish their family home at that house, where they live with their two little children.

Now, Pietro has received a very interesting offer for the house from an Investing company called Paradise Rooms SA, so he decides to sell it. Pietro and the representative director of the company have signed the purchase contract before the notary and have sent it to the Land Registry to register the new owner.

According to Swedish law Pietro can not sell the house without consent from his wife if it is marital property. If the property is private, consent might still be necessary depending on how the property was made private and if the property is their shared housing.