Enskild egendom, giftorättsgods eller lite av varje? - En studie av gällande rätt i fråga om surrogat av blandad karaktär

This thesis explores the challenge concerning mixed substitute property, meaning property acquired partly through the marital property of a spouse, partly through their separate property. The purpose is to investigate whether such property should be classified as both separate and marital, split proportionally, or as either separate or marital in entirety when division of property between spouses occur. It is also investigated if the type of classification differs depending on any established ratios of separate versus marital property. Current law is explored using a legal dogmatic method. Furthermore, the legal framework is examined through a social science perspective, aiming to discuss how the law should be applied.

Separate property can be acquired through a prenuptial agreement or through a stipulation in gifts, wills and appointments of beneficiaries by a third party and is not included in the division of property between spouses. Property that has been obtained as substitute for separate property is also still to be considered separate property unless stated otherwise. Concerning property which has been acquired with both separate and marital property in the form of mortgaged real estate, the Supreme Court of Sweden (Högsta domstolen) have in several legal cases, despite relatively low ratios, judged the nature of the down payment to be a deciding factor whether the property have been treated as separate or marital in entirety. The same principle of classifying mixed substitute property as either separate or marital in entirety has also been applied to separate property cash when it has been commingled with marital property on bank accounts. However, current law regarding other methods of acquisition or types of property remains unclear.

The choice between treating property as a mix of separate and marital, or as a single type, may in many cases lead to the same results. This is due to rules concerning compensation and uneven division of property in the Swedish Marriage Code (Äktenskapsbalken). These allow claims of compensation towards a spouse who uses marital property to acquire or appreciate the value of their separate property, as well as, through adjustment of unreasonable results from the division of property, allow a spouse to keep more of their marital property if separate property has been used to increase it. The rules concerning compensation and uneven division of property are, however, applied somewhat restrictively. There is therefore a moral reason to advocate for splitting mixed substitute property proportionally between separate and marital, in order to achieve a result as fair as possible. However, there are some practical difficulties with establishing specific ratios of each type of property, which supports treating property entirely as either separate or marital.