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According to the Swedish Marriage Code (SMC) 9:1, a division of property between spouses should always follow a divorce. The property that is divided is marital property. However, it is sometimes possible to exempt marital property from the division according to SMC 10:3 par.1. It is for example possible to exempt pension rights, but SMC 10:3 par.1 is not applicable in all cases concerning pension rights. In these situations, SMC 10:3 par. 3 can become applicable instead, which makes it possible to still exempt the pension rights from the division. It is sometimes also possible to apply SMC 12:1 In these situations. One possibility for workers to enhance their occupational pension is to exchange wages for extra payments to their, for example, occupational pension insurance. This is sometimes called “wage exchange”. It is not fully established how these kinds of pension rights should be treated in the division of marital property following a divorce. In this essay, it is examined if there should be a new regulation where the treatment of “wage exchanged” occupational pension in the division of marital property is based upon whether the “wage exchange” goes to a regular occupational pension insurance or a separate occupational pension insurance. The conclusions that can be drawn from this essay is that the new regulation should not be adopted and tat the established regulation should continue to be used. This is based upon that the results of the established regulation are more predictable. By using the established regulation, random and arbitrary results of the division of property will be avoided. These results will in more likelihood be avoided because the established regulation takes other factors into consideration than only the type of occupational pension insurance. The strive for more equal pensions would not benefit from the new regulation and the regulation should therefore not be adopted. |
