Can the apartment be exempted from division of property through a prenuptial agreement?
I have a girlfriend who lives with me, currently in a rented house. However, we are stepping up our relationship, she is pregnant and I'm about to buy a larger apartment. I will buy this apartment with my own savings (she will not contribute). Can I formalize our union by getting married and make a pre-nuptial agreement where I indicate this apartment as private property? Notice that this will be the apartment that we will live together. I have Swedish citizenship, and my girlfriend is about to get it as well (but we are born in another country). Assuming that it is possible to make it private property, in case of a divorce, would she still be entitled to claim part of it in a division of property?
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Provisions on what applies between you in the event of e.g. divorce is found in the Marriage Code (Äktenskapsbalken). When a marriage is dissolved, the couple's property is distributed between them by division of property. Division of property is not required if the spouses have only private property and none of them asks to take home or household goods from the other spouse (Chapter 9, 1 § Marriage Code). The division of property must include the spouses' marital property (Chapter 10, 1 § Marriage Code). A spouse's property is marital property insofar as it is not private property (Chapter 7, 1 § Marriage Code). Private property is, among other things, property that is private as a result of a prenuptial agreement (Chapter 7, 2 § Marriage Code).
It is thus quite possible, just as you yourself suggest, to exempt the apartment from division of property through a prenuptial agreement. If the apartment is private property, the starting point is that it should not be included in a division of property. However, there are some opportunities for a spouse to, despite a prenuptial agreement, take over the joint home in connection with a divorce. A prerequisite for this is that the other spouse redeems the owner spouse from the home financially and that it is reasonable with regard to the circumstances in general (Chapter 11, 8 § Marriage Code).
My recommendation, so that you do not have to share your home in the event of a divorce, is that you draw up a prenuptial agreement. The prenuptial agreement must be drawn up in writing, dated and signed by both of you (Chapter 7, 3 § Marriage Code). For validity, it is also required that you send it in and register it with the Swedish Tax Agency (Skatteverket).
If you want help with drafting a prenuptial agreement, one of our lawyers can be helpful for the purpose. If this is interesting, you are warmly welcome to contact me by e-mail for a quote and further contact. I can be reached for the purpose at email@example.com.
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