FQRD: Recognized partnership (Iceland, 1996)

	Iceland : Recognized partnership remarks
`Texts/ Iceland`

[Bill]
[Changes]

REMARKS ON PARTICULAR SUBSECTIONS

Section 1

In the first subsection of the proposal it is said that two persons of the same sex can contract a recognized partnership. The wording excludes the possibility of two persons of opposite sexes having their partnership officially recognized. The bill aims at issuing the described right to homosexual persons. On the other hand, it is not stipulated that the persons have to be homosexuals, although the Norwegian corresponding act does so stipulate. There is no need for this requirement and it is felt that issuing such a requirement would not be appropriate. This is in line with the fact that the law does not define the sexual orientation of those marrying themselves or living in a partnership.

Section 2

This section stipulates the prerequisites of a recognized partnership. The first subsection refers to Part II of the Marriage Act dealing with the prerequisites of a partnership. Subsections 7-12 are in force, and the conditions thereof on an age of 18 (Section 7) and the full age before the law of a person (Section 8) and conditions of too closed kin (Section 9). A party of a partnership must not be a person adopted by the other party (Section 10). Bigamy is prohibited (Section 11). The last provision prohibits to enter a partnership before the dissolution of a former partnership or that the dissolution has been officially embarked upon (Section 12). It is emphasized that the provisions on non-effected division of property with a former partner also applies to the recognized partnership. This is more explicitly stated in subsection 1 of Section 5 stipulating that the judicial status of a recognized partnership is the same as that of marriage.

Some issues pertaining to civil rights and domicile have been dealt with in subsection 2. There are corresponding conditions in the relevant legislation in the Nordic countries. They are justified by the fact that living together in a partnership of this new kind has been recognized in few countries outside the Nordic countries. This is why it is required that the partners have some kind of connection with the country in question. Consequently, it is not possible that two persons of non-Icelandic citizenship recognize their partnersip in Iceland, and, furthermore, this kind of a recognition would not have any judicial effect in the case their home contries have not recognized by law the new legally recognized form of living together. To fulfil the condition of subsection 2 it is sufficient that at least one of the persons in question is an Icelandic citizen and domiciled in Iceland. In this context, domicile means subsection 1 of Section i of the Domicile Act No 21/1990, i.e. the place of permanent residence.

Section 3

Parallelly with subsection 1 of Section 13 of the Marriage Act, those wishing to enter a recognized partnerhsip need to have a certificate stating that the conditions thereof are fulfilled. Subsection 2 of the Bill refers to Part III of the Marriage Act stipulating how to establish that the conditions are fulfilled, i.e. how to investigate the matter, by whom and how to issue the respective certificate.

Subsection 3 of Section 3 of this Bill states that it is the Minister of Justice who issues rules on how to carry out such an investigation. There are corresponding rules on how tho investigate that conditions of a marriage are fulfilled in subsection 2 of Section 13 in the Marriage Act. Since the new marriage acts entered into force on 1 July 1993, no new regulations have been issued. The regulation on the investigation of the conditions in force, Regulation No 155 issued on 8 June 1973, has been issued while the old Marriage Acts 60/1972 were still in force. The regulation is envisaged to be reviewed on the basis of subsection 2 of Section 13 of the Marriage Act and subsection 3 of Section 3 of the present Bill, should the latter be enacted.

Section 4

The fourth Section of the Bill suggests an exception to Section 16 of the Marriage Act, i.e. that civil wedding would only be possible. Section 18 stipulates that it can only be carried out by heads of police districts and their representatives having a juridical education. This is in line with the Nordic legislation. As the legal contracting is thus restricted to the civil procedure, referred to in Section 18 of the Marriage Act, Sections 19 and 20 of the said act do not apply.

At the beginning of 1995 the Minister of Justice and Church requested the Bishop of Iceland to issue an opinion of the Icelandic national church on whether the representatives of the church could carry out recognition of a partnership. At the same time, the church was asked if it felt it should have the right to marry persons of the same sex and, further, if it should be obliged to marry persons of the same sex even if the act were against the conviction of the priest. It was also suggested that the issue should be clarified by both the Church Assembly and the National Church Board. Shortly afterwards the Bishop established a working group to deliberate and it was requested to present its findings to the Church Assembly in autumn 1995. The group could, however, not complete its mission by the time set, and, instead, the National Church Board formulated an opinion of the church on the matter. The reply letter of the Bishop of Iceland was dated on 21 November 1995 and it states the following:

The church well understands that the priests do not only serve religious people but they have also functions of authorities. The law of the state applies to them, too. The church does not, however, wish that a possibility for church wedding for persons of the same sex be incorporated in the legislation.

It is obvious that the priests and other servants of the church pray for those who are in the need thereof but this is only the question of need and the status of the person in need is not questioned.

The Minister of Justice and Church also requested a view of the church on the conciliation in the case of a recognized partnership. According to subsection 1 of Section 42 of the Marriage Act, a wedded couple, having agreed on divorce, can always seek for conciliation. On the basis of subsection 3 of the said act, this conciliation is to be carried out by priests or representatives of religious communities. In the case of one or both spouses not being members of religious communities or belong to different communities, the head of a police district or a judge can take care of the matter, depending on the place. The Bishop's letter comments on this as follows:

Priests do not ask married couples who has wedded them while helping them in their problems. In the same manner, priests will help couples of the same sex as anybody in the need for pastoral care. It would be peculiar if couples of the same sex needed the church's permission for their divorce, if the conciliation hasn't been succesful, as the priests have not wedded them in the first place.

On the basis of the above view of the national church no changes in the Marriage Act are required.

Subsection 2 of Section 4 in the Bill refers to regulations of the Marriage Acts on who is entitled to officially wed a couple and how the wedding needs to be effected. Subsections 21 - 26 on the civil wedding of the act will thus apply to the recognized partnership, too.

Section 5

The core of the proposal is presented here. The main goal of the Bill is to ensure equal rights and responsibilities to the partners of a partnership in comparison to those in a marriage. Thus, Section 5 highlights the fact that a recognized partnership, when contracted, receives the same status as marrige with the exception of matters, referred to in Section 6. At the same time, those living in a recognized partnership will enjoy the same rights and responsibilities as those in a marriage. The matter is presented more precisely in Part III where there are general remarks. As examples, the right to inherit property from one's partner in a recognized partnership, the regulations of the Inheritance Act being extended to the recognized partnership, the concept of the tax laws of common household being regarded as in the case of a married couple, as well as the insurance and social welfare acts being applied to the recognized partnership in the same way as to the marriage, if the Bill is enacted.

In addition to what is said on the juridical effect of entering into a recognized partnership, Section 5 emphasizes that all legislation referring to married husband or wife also apply to the recognized partnership without explicit changes of the law.

Section 6

In the bill, there are a few exceptions as regards the main rule, according to which the legal status of a recognized partnerships correspond to that of marriage. All the exceptions are listed in Section 6. The exceptions are based on the exceptions included in the corresponding legislation in the other Nordic countries.

In Part IV with remarks on the Bill, the opinion taken by the majority of the Committee and justification of exceptions in Subsections 1 and 2 of Section 6. The exceptions concern children. Among other things, it was raised that as long as recognized partnership has not been commonly established as a form of living in society, progress in this matter should be made without hurry. When the best interest of a child is looked at, and also that a child should have a model of both a mother and a father, it cannot be justified to try to accomplish a law entitling two persons of the same sex in a recognized partnership to have the right to adopt children on the basis of the Adoption Act or the right to artificial conception.

On the other hand, the possibility that one of the partners already has thecustody of a child when entering a recognized partnerhsip had to be taken into consideration. In a case, where a child of one of the partners lives with the partners of a recognized partnership, it is normal and in the interest of the child that the subsection 3 of Section 30 of the Child Act concerning the legal custody of a child when one of the parents is not a biological mother or father, is applied in line with marriage. According to the proposal, two persons in a recognized partnership can take care of the child of one of the partners and they have equal responsibilities vis-=E0-vis the child as stipulated in Subsection 2 of Section of the said act. What is stipulated in other legislation on the relationship of the relationship of a foster parent and the children, applies to this matter, too. If a child's father or mother dies, the spouse can carry on with the custody. However, in concordance with Subsection 2 of Section 31 of the Child Act, the custody of a child can be given to the parent still alive provided that the father or mother so wishes and that it is considered to be in the best interest of the child. If the persons in a recognized partnership have a joint custody, it rules e.g. in a case when the couple, when divorcing, are required to seek reconciliation as stipulated in Subsection 2 of Section 42 of the Marriage Act. As noted in the remarks of Section 4 of the Bill, the general procedure for reconciliation applies to a divorce of couple in recognized partnership.

The exception suggested in Subsection 3 of Section 6 is based on the view that the Act should not include a definition of the sex of a spouse as this might lead to unequal treatment of the couples of the same sex. In fact, in the Icelandic legislation, there are but few points where the sex of a spouse is mentioned any more. With a view to the general issues of equality, references to sex have been almost completely deleted during the past decades, and the new Marriage Act contains no more of them. As an example of those remaining, Section 7 of the Social Assistance Act where the widow's pension benefit is dealt with in a manner only refering to a female widow's pension.

The last part of Section 6 contains an exception which makes the recognized partnership accepted in the Icelandic legislation only. The recognized partnership is not extended to situations where any international agreements on marriage are concerned if all the parties concerned do not otherwise agree. This is a normal procedure, as otherwise very complicated situations might arise with countries not recognizing a recognized partnership. Iceland has signed relatively few international agreements pertaining to marriage and its juridical status, the only agreements that can be of relevance being the ones with Denmark, Finland, Norway and Sweden. In the agreement of 1931 (see Act No. 29/1931) it was agreed on marriage, adoption and full age. Although three of these countries - Denmark, Sweden and Norway - have already issued an act on the recognized partnership, they have still to pass a proposal to make the recognized partnership valid in all of these countries. Subsection 4 of Section 6 can apply to future international agreements on marriage and its juridical status.

It should further be mentioned that according to the general international principle of private law that two persons, having had their partnership recognized abroad, may upon taking up residence in Iceland, register their partnership in Iceland. The registration act brings them the same legal status as a couole in a partnership recognized in Iceland has.

Section 7

This part deals with the end of a recognized partnership. The same regulations apply as in a marriage. The regulations has been drafted in line with Section 5 of the Marriage Act. In Part V of the Marriage Act, there are more detailed regulations to this end. Part VI deals with the divorce. Section 8 The first subsection of the Section refers to the Marriage Acts, how a marriage is dissolved, how a divorce is contracted and properti divided. These regulations apply in the case of a recognized partnership, too. This is emphasized by a common principle, according to which, all the laws on the end of a marriage, the legal status of spouses and a widowed spouse, apply to the recognized partnership. A partnership can come to and end in a divorce, dissolution or death.

On the basis of what has been said above, Part XV of the Marriage Act dealing with the legal effects of a marriage and Part XVI dealing with the relation of the authorities to a marriage, apply to the recognized partnership with the exception of what is stipulated in Subsections 2 and 3 of Section 8 of this Bill. The first exeption is due to the fact that Section 113 of the Marriage Act grants the Icelandic courts a wider right to raise an action on the basis of Section 113 of the Marriage Act. The conditions concerning the domicile (see passages 1 and 2, subsection 1, Section 114) and nationality (see parts 3 and 4) of the defendant are wider and no separation is needed before a divorce is sought from a court. The wider conditions are justified as, due to the limited international acceptance of the recognized partnership, it may be difficult to raise the issue in a court outside Iceland.

Corresponding justification also applies to Subsection 3 of Section 8 in the Bill. It is aimed that those living in a recognized partnership may seek solutions in matters related to their partnership from Icelandic authorities. In such a case it is not necessary to consider the conditions of Subsection 1 of Section 123 dealing with i.a. nationality and domicile.

Section 9

No clarifications required.

APPENDIX

Chancery of the Ministry of Finance.
Statement on the Bill on the recognized partnership.

On the basis of this Bill two persons of the same sex could recognize their partnership and thus acquire the same rights and responsibilities as those living in a marriage.

The conditions of the recognition are the same as mentioned in the Marriage Act. As regards the cost of the clearence of the conditions with the head of a police district, the costs involved are of little importance.

Section 5 of the Bill stipulates that the law issues the same rights to a recognized partnership as it does to a marriage with the exception of what is regulated in Section 6. This means that the persons living in a recognized partnership have by law the same rights and responsibilities as a married couple, as regards i.a. income and property tax, g

eneral insurance security and social assistance and possible pension. At the moment it is not known how many persons will enter a recognized partnership. Thus, it is impossible to say what impact it will have on the Government's expenses, financing of the general insurance security, social assistance or other issues related to state economy. The experiences of the neighbouring countries witness of a relatively low number of recognized partnership, and, thus, of an insignificant impact on the state economy.

Translation from Finnish to English is made by Mr. Mika Vepsalainen. This translation is made from the Finnish text, translated from Icelandic by Steinunn Gudmundsdottir.

The original wording of the Act is using expression "confirmed living together", where "recognized partnership" is used in this translation.

Iceland : Recognized partnership remarks