A woman and a man had two children together. Because they were not married, the woman did not receive property and spousal maintenance payments after they separated. One evening she was serving dinner for her children and all she had was two sausages, one for each child. The children asked: "Mum, why don't you also get a sausage?" "Well, because I wasn't married to your father, and I can't afford an extra sausage. He's paying for you because you have a legal relationship with him, but I don't,” she replies. "Mum, that's not fair. Have some of our sausage!", the children said.
“I use this example from a German court in my teaching. It shows how children from a non-marriage are worse off because ultimately, they will end up with less sausage than children born in a marriage. It is an indirect discrimination of the children. So, the question we must ask ourselves is, why should these children get less sausage? Abstractly speaking, why should children born to an unmarried couple be worse off than children born to parents who were married?” asks Jens Martin Scherpe.
He is a professor of Comparative Law at the University of Aalborg and leads the Nordic Centre for Comparative and International Family Law (NorFam).
Family laws were made to protect the weaker parties
Amongst other things, family laws are based on the idea that there often is a financial and other power imbalance in a marriage (and in relationships more generally), which we need to rectify as a society, and this means that the financially weaker spouse need to be protected. Traditionally, we had a homemaker/breadwinner-model in which the wife stayed at home and the husband went to work. If only the general law applied and there was no family law, the man would earn and keep all the money, and the woman was lucky if she got any, particularly in case of separation or divorce. This is where family law intervenes.
“It is the same situation in consumer law, where you have one big company selling and one small person buying things. There is a real power imbalance. Or in labour law, where you have a big company and an employee. As a society, and particularly the Nordic societies, we try to address these power imbalances so that we have a fair outcome in case of disputes.”
The question is whether the current family laws still are appropriate for the way we live in 2024?
“The current family laws are mostly based on the idea that a family is a man and a woman united in marriage. Marriage was family and family was marriage. However, that does not conform in any shape or form to the way we live today, because we have same-sex marriage, people living together without being married, friends having children together without an intimate or love relationship with each other, persons who are legally male giving birth to children, surrogates giving birth to children for other people. We need to set up our laws in a different way,” he says.
Jens Martin Scherpe adds that the Nordic countries often are in the vanguard of social developments, for example regarding gender equality, recognition of same-sex relationships and cohabitation relationships.
Nordic countries have very different practices
In Norway, currently there's a law reform process going on, because Norway (and Denmark for that matter) unlike Sweden, does not have a comprehensive law that recognises de facto-relationships In the Nordic countries, around 25 percent of all relationships are de facto-relationships and of all children growing up in Scandinavia, some 50 percent are born outside of marriage. Yet, if you live together without being married, other than the rather minimalistic statute in Sweden, there are no specific rules that apply, and the family will not be protected by the family law.
“We need to compare the Nordic countries and talk about these things. We tend to say the Nordics are a bit ahead of the game but in some areas we´re not. We have this ideology in the North that all families are equal, but the unmarried families are disadvantaged, so are same-sex families on many levels, especially when it comes to the recognition of their children,” he says and continues:
“I think what we have been doing for much too long is to have an adult-centered law. And what we really should be doing is to look at the position of the children in these relationships and say whether we can really justify disadvantaging these children because we do not put the relationship that their parents have on an equal footing.”
“Family law does not win you elections, but it can lose you elections”
“When family laws are revised, unfortunately, very often this is the result of political posturing. Politicians pretend that they want to do one thing, but sometimes they already know when they're implementing it that this is not going to work, but it's going to look good on paper. That will then pay off when people go to the voting booth. But I always say that family law does not win you elections, but it can lose you elections.”
If you bring in legislation which a significant part of society still sees as controversial, for example, introduction of same-sex relationships being recognised or allowing assisted reproduction and donation of ova (that women can give birth to children that are not genetically theirs), a lot of people will find this controversial. While this may not generate swings of 20 to 30 per cent in each direction, in many political environments, a swing of three per cent is highly relevant, Jens Martin Scherpe explains.
We must dare to discuss
Whether it is a politically hot topic or not, Jens Martin Scherpe and his research centre urge the Nordic societies to discuss family law issues more.
“There are many good arguments for changing the family law and there are many good arguments against. We live in a social media society where the length of our discussions are usually 160 characters, but the issues in family law are complex. What we see is that quite often important family law decisions are taken without proper consultation, without having working groups and without taking research into account properly. It would be much better if they were taken on a fully informed basis.”
One of the NorFam objectives is to go through various areas of law to identify what the problems are, how they have been addressed in the various Nordic countries and beyond, and to point out inconsistencies and “even go as far as to say this is what we think should be done,” Jens Martin Scherpe concludes.
Law series
NordForsk funds two projects that both research Nordic law. We are publishing a small series of articles on family laws and the introduction of national laws. This is the first article in a series of two.
