Date: Fri, 20 May 1994 08:53:56 MET From: "Tobias Wikstr|m" <tobias@rfsl.se> News from Swedish gay/lesbian politics Published by the Swedish Federation for Gay and Lesbian Rights (RFSL) No. 19/94 (May 9th-15th, 1994) 1 The Council on Legislation says no The Council on Legislation proposes that the Partnership Act should not be introduced. This can be concluded from a statement submitted by the Council on Legislation on May 11th: "During its examination of the proposed Registered Partnership Act, the Council on Legislation has in the first place established the fact that the chosen legislation technique has the advantage that the Act is relatively short and does not seem to be very complicated. The latter impression, however, is more delusive. Getting a secure and timely overview of the complete consequences of the regulation is thus, at least for an individual, a particularly difficult task. It can here be noted that the list of laws that was presented by the Partnership Commission, after a computer search in August 1993, fills over seven pages in the report. Since then, yet a number of laws or regulations that must be considered in this context have probably been added. This unconventional legislation technique thus affects an unusually big number of other laws. There is no examination on how these fit into the system. Therefore there is no basis for a closer examination of what implementation difficulties or other problems that the proposed law may bring with it. However, it is probable that it will not be free of complications. From what has previously been said it can be concluded that a person that considers being subject to the regulations of the Act will have difficulties in surveying in detail what such a decision means in reality. Seen from the viewpoint of others concerned, not the least a big number of authorities and civil servants on different levels, the proposed Act creates some difficulties too. For most of these authorities and civil servants it is thus normal that the laws and regulations that they are to implement are both very comprehensive and detailed. The proposed Act instead presumes that all civil servants who work in areas affected by the Act, constantly keep it in mind. During these circumstances mistakes may occur, at least in the beginning. In this context there is furthermore reason to note that in the fundamental section where it is stated which legal consequences that are in question (Chap. 3, Sect. 1), it is prescribed that regulations 'related to marriage and spouses' are to be applied. The Council on Legislation, considering the aim of the regulation, understands why this expression has been chosen. It is not easy to find a better proposal. But it must be stated that the mentioned regulation hardly is an exact limitation. It cannot be considered clear how valid the term 'related to' can be in different circumstances. It is not excluded that also the exception regulation in Chap. 3, Sect. 3 sometimes may cause some hesitation in practice. Particular difficulties may arise when the legislation is to be applied in cases with international relations. Within the foreseeable future, Registered Partnership Acts will exist, besides in Sweden, only in Denmark and Norway. It is highly unclear to what extent a registered partnership will be paid attention to in other countries. The fact that Finland and Iceland in their legislation do not recognize a registered partnership causes problems already on the Nordic level. As an example can be mentioned the agreements that have been made between the Nordic countries in the area of inheritance and which has led to legislation in Sweden. As the Standing Committee has remarked, the consequences of this inter-Nordic regulation is, inter alia, that in a case when a partner in a registered partnership deceases and is domiciled in Finland, a Swedish court is not authorized to determine the issue of inheritance. In such a case one can hardly count on that a registered partnership will be given legal force. Even less is there reason to believe that a registered partnership will be recognized in non-Nordic countries. In such cases when a state is bound by an international convention, e.g. the Lugano Convention, where issues on recognition and execution of judgements on family maintenance are regulated, the state should be able to refer to ordre public, i.e. that a recognition of the partnership would be considered apparently incompatible with the bases for the legal order of the state. Even if a Swedish court is authorized to consider a partnership case, problems may arise concerning which law to choose. In some cases the court has to judge according to a foreign legal order. According to the opinion of the Standing Committee, the general regulation in Chap. 3, Sect. 1 in the Registered Partnership Act should be valid and the Swedish court should consequently apply the foreign legal order about the case, mutatis mutandi, for marriage. The Council on Legislation for its part considers it doubtful whether such an implementation always is possible. It can thus be established that a registered partnership may cause considerable problems for those who are partners in such a partnerhsip, particularly if they are of different nationalities and have property abroad. Considering the increased movements over the borders and considering that partner relationships between people of different nationalities can be expected to become more common, the proposed legislation also in this regard leads to hesitation. Because of what has been said, the general conclusion of the Council on Legislation - on the presented material and after the examination that has been possible in this case - that the proposed legislation in several regards is not enough clear and that there is an obvious risk that it may lead to different difficulties when applied. According to the opinion of the Council on Legislation, the proposed Act should not be adopted under such circumstances if not strong reasons can be presented." After this, the Council on Legislation makes a lot of remarks on the wordings of the Act. In the daily Svenska Dagbladet (May 13th), the member of the Council on Legislation Per Jermsten comments: "We are saying that considering the uncertainties that we have pointed at, the proposed Act should not be adopted if not conclusive arguments support the legislation. This is a political issue and we do not interfere in political issues." It was on April 28th that the Standing Committee on Civil-Law Legislation submitted its proposed legislation to the Council on Legislation (see News from Swedish gay/lesbian politics 17/94). 2 Editorials on the Council on Legislation "Since we have a legislation in Sweden which gives married couples particular rights that the state has sanctioned, like inheritance, pension etc, the question arises whether the state should have any objections on who a person wants to share these rights with. The conclusion will be that the state should not have such objections, nor if somebody chooses that the partner should be somebody of the same sex. That is the only reasonable conclusion. The fact that the Council on Legislation has commentaries concerning the formulations of the law should lead to that some parts of the law should be rewritten, but absolutely not stopped. Don't let a good proposal fail just because of formal reasons!" (Norrl�ndska Socialdemokraten, Social Democratic, May 13th) "The Parliament should once and for all restore the dignity of gay men and lesbians and equalize their legal rights to those of heterosexuals. It is time that the society shows solidarity with gay men and lesbians and introduces the partnership law." (Sydsvenska Dagbladet, independent liberal, May 14th) "Also the Council on Legislation, which is to examine important proposed laws before adoption, criticizes the hasty and controversially elaborated proposal about marriage regulations for homosexuelas. The Council on Legislation maintains in its remarks that the legal consequences of such a legislation are not enough analyzed and considered. No, it is obvious that the proposal on partnership is not based on factual analyses but rather on strongly emotional arguments. The first question the Council on Legislation otherwise should have posed, before taking the unique measure of quickly examining this issue is: how big is the group that these new marriage rules will concern? Strangely enough neither the Standing Committee on Civil-Law Legislation nor the Partnership Commission have tried to answer to this completely crucial question. Because of pretended respect for the personal integrity they did not want to examine this. The truth is rather that they were afraid of the answer." "The primary aim of the proposed marriage regulations, however, is not to meet the undefined needs of this undefined group. The aim is, which is also stated in the Partnership Commission Report, to 'to the greatest possible degree legally equalize homosexual and heterosexual life'. This means for example that homosexuality in the schhols will be presented like an equal form of life. The Standing Committee on Civil-Law Legislation should also in this case respect that the Swedish parents, to a high degree, do not share this opinion." (Carin Stenstr�m in the christian daily Dagen on May 13th) The periodic publications of RFSL Kom Ut (in Swedish): 6 issues a year. Subscription 150 SEK a year. Fakta fr�n RFSL (in Swedish): Approximately ten fact sheets that are updated regularly. Subscription 200 SEK per ten mailings. News from Swedish gay/lesbian politics (in Swedish and English): 52 issues a year. Subscription 180 SEK a year or 30 international reply coupons. Hivbladet (in Swedish): 12 issues a year. Free of charge. Membership in the RFSL: 160-250 SEK a year, depending on which local branch is chosen. Includes subscription of Kom Ut. -- Tobias Wikstr�m <tobias@rfsl.se> RFSL, Box 350, S-101 26 Stockholm, Sweden Telephone +46-8-7360213 Telefax +46-8-304730