08-02-2022
It can be difficult to decipher what rules apply to the finances in case of a divorce if the spouses did not reside in Denmark at the consummation of the marriage. The choice of law is dependent on the place of residence of the spouses, their citizenship and affiliation to the country they reside in. Below is given an overview of the rules for venue of jurisdiction regarding divorcees division of property in Denmark.
The Danish law regarding division of property
If the spouses reside in Denmark at the consummation of the marriage and at the time of application for the divorce, the general rule is that the Danish law about division of the spouses property applies. Under this set of rules, the spouses combined property is pooled together at the consummation of marriage, at must be divided equally in the event of a divorce, unless they have signed a prenuptial agreement regarding separate property.
Residence outside Denmark
If the spouses did not reside in Denmark at the consummation of the marriage, the venue of jurisdiction is he country where both spouses had their place of residence at the consummation, or where they first shared a country of residence after the consummation.
If the spouses did not reside in the same country or did not move to the same country at the consummation, the venue of jurisdiction is the country where both spouses had their citizenship at the consummation.
If the spouses situation is not covered by any situation described above, the venue of jurisdiction is the country which the spouses had the closest relationship to at the consummation of marriage.
In case of uncertainty regarding the place of residency, the circumstances are considered as a whole, wherein determining factors can be the purpose and duration of the stay, affiliation to other countries and the place of residence of the family. Read more about the term “place of residency”
here.
Residency in Denmark in the last 5 years
If the spouses have resided in Denmark in the 5 years before the divorce, the Danish law regarding sharing of property can be applied. These 5 years are counted from the date that the Danish act on the finances of married couples entered into force, which is January 1st, 2018. This means that the rules can used on the 1st of January 2023, at the earliest.
Freedom of contract
If the spouses wish to have another country’s law applied to them than the one predetermined for the (see above), they are free to enter a agreement on this matter. This way the spouses can decide for themselves if they want the Danish rules to apply in case of a divorce. However, this is only possible on the condition that the spouses have citizenship in Denmark and/or place of residency in Denmark at the date of the conclusion of the agreement.
In Denmark, an agreement about venue of jurisdiction is only possible through a prenuptial agreement. This involves registration at the Danish courts.
Our comment
BREMER Advokater are always ready to advise you on the finances of marriage in the case of divorce. When we advise on divorce cases where the spouses did not reside in Denmark at the consummation of the marriage, our job is first and foremost to assess if the spouses can use the Danish rules about the finances of married couples in the divorce settlement. Because of this, BREMER Advokater are looking forward to the 5-year rule entering into force on the 1st of January 2023, which will make it easier for our clients to conclude the settlement.
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Date: 08/02 2022
Authors: Line Stecher & Asger Søderberg
