GR and LR v SÖ (2022) H&FLR 2022-1
by Stephen Tuck
GR and LR v SÖ (2022) H&FLR 2022-1
Supreme Court of Sweden
8 July 2022
Coram: Anders, Mattsson, Runesson, Reimer and Malmberg JJ
Appearing for the Appellants: Lawyer HM
Appearing for the Respondent: Advokat ÅS
Catchwords: Sweden – relationships – asexual – insurance
Facts: The respondent and HR met in 2008. They commenced a relationship and by 2015 had set up a farm together. They pooled their financial resources. Their associates viewed them as either close friends or a couple. Their relationship was non-sexual but was described as loving and deeply and intimately emotional.
HR died in January 2018. Her will left her entire estate to the respondent as her partner. On HR’s death an insurance benefit became payable to her “spouse, partner or cohabitant” and (failing that) to her relatives
HR’s parents (the appellants) claimed to be entitled to the insurance benefit on the basis that their daughter and the respondent had a joint household but not a relationship in the relevant sense. They particularly relied on the fact that HR and SÖ did not have a sexual relationship. They brought proceedings challenging SÖ’s right to the insurance payment in the District Court. Their application was dismissed. The dismissal was affirmed by the Svea Court of Appeal. They further appealed to the Supreme Court of Sweden.
Held: Dismissing the appeal, that –
1. The Cohabitation Act 2003 (Act) defined cohabitation as two people permanently living together in a relationship and having a joint household. The statute considered such a relationship to be broadly marriage-like and normally to include sexual relations.
2. The test of whether cohabitation existed was objective, although significant weight should be given to whether the parties jointly considered themselves to be cohabitants.
3. The Act contemplated that cohabitant relationships would normally include sexual relations. However, this was not definitive. The crucial test was whether the relationship was characterized by the closeness to be expected between married people.
4. On the available evidence the relationship between HR and SÖ was such that they must be considered to have been a relationship within the meaning of the cohabitation. It followed that SÖ was entitled to the insurance benefit
Note: In preparing this headnote I have followed Anglo-Australian usage including in naming the case after the parties. The Swedish name for the case would not be GR and LR v SÖ but “Samborna på Sollerön” (“The cohabitants on Sollerön“)
[I have translated the judgment from Swedish into English using Google Translate and reproduce it below. I have amended obvious errors or infelicitous translations (“comrades” has become “close friends”, for instance). I do not think I am violating any intellectual property by doing so, but if I am (and if you’re the copyright holder) please advise so that I can rectify the situation]
The issue in the case
1. The question in the case is whether two women should be considered to have been cohabiting within the meaning of the Cohabitation Act (2003: 376).
2. HR and SÖ, who were then in their twenties, met in 2008 and registered at the same address a few years later. Since 2015, they were registered on a farm in Dalarna, where they both lived and together, among other things, engaged in animal husbandry. They had a common household and a common economy and basically the same interests and relationships. Some in the family and circle of friends perceived the two women as friends or good friends, others saw them as a couple. In the gift letter regarding the farm that HR wrote to SÖ, it was noted that they were cohabiting. Also in her will, where all estate would go to SÖ, HR explained that SÖ was her partner. In January 2018, HR passed away.
3. HR had a group insurance with Folksam which at her death amounted to SEK 320,000. According to the insurance terms, the beneficiaries are primarily a spouse, partner or cohabitant and secondarily relatives entitled to inheritance. According to the terms, cohabitation refers to two unmarried persons who have a joint household and who permanently live together in a relationship according to the Cohabitation Act.
4. There was a dispute between HR’s parents – GR and LR – and SÖ about who, as a beneficiary, is entitled to the insurance compensation. Folksam therefore reduced the amount at the county administrative board.
The attitude of the parties
5. GR and LR, who brought an affirmative action for a better right to insurance compensation, have testified that HR and SÖ lived together permanently at the time of death and had a joint household, but have argued that it was not a relationship within the meaning of the partnership. They have especially emphasized that HR and SÖ did not have a sexual relationship but lived together as friends.
6. SÖ has stated that it is true that there was no sexual cohabitation but has explained that she and HR had an emotionally deep relationship and saw themselves as a couple and as cohabitants.
7. The parties agree that the term cohabitant in the insurance contract has the same meaning as the definition of cohabitant in the Cohabitation Act (cf. also Chapter 14, Section 6 of the Insurance Contracts Act and Bill 2003/04: 150 p. 548). The case thus concerns the question of whether HR and SÖ lived in a relationship within the meaning of that law.
The courts’ assessment
8. Both the district court and the court of appeal have come to the conclusion that HR and SÖ should be considered to have been cohabiting and that SÖ has a better right to the insurance compensation than GR and LR.
9. The Cohabitation Act is based on the fact that through cohabitation with a joint household and the construction of a joint home, there is an actual intertwining of the cohabitants’ finances. It has been considered that there is a need for practical legislation that provides guidance for the dissolution of the common home but also some protection for those who need the home the most.
10. The law therefore contains rules which, when the cohabitation relationship is dissolved, give the cohabitants a marriage-like right to share such property in the joint home that has been acquired for joint use. Furthermore, a cohabitant has the right, under certain conditions, to take over a joint home that the other cohabitant owns.
The definition of cohabitant
11. The Cohabitation Act contains in section 1 a definition of cohabitant. Cohabitation refers to two people who permanently live together in a relationship and have a joint household.
12. This definition of cohabitant replaced the requirement of a marital relationship that had existed in the 1973 and 1987 laws in this area. The main reason for the change was that a cohabitation, which should also include cohabitants of the same sex, could not speak of “marriage-like” when it was introduced in 2003 because marriage could then only be entered into between a man and a woman. In addition, the legislator wanted to try to clarify what was meant by including in the legal text things that had previously been explained only in the preparatory work. At the same time, it was emphasized that the new definition was not intended to imply any objective change in the concept of cohabitation (see Bill 2002/03: 80 p. 27).
13. On an overall level, the idea can therefore still be said to be that it is a relationship that is overall marriage-like, then considering that even same-sex couples can now marry. The conditions for a cohabiting relationship specified in section 1 can thus not be strictly seen as a completely independent prop. As before, a comprehensive and free examination may be made with regard to all circumstances (cf. eg Bill 1973: 32 p. 167 and “The Cohabitants in Forserum” NJA 1994 p. 256). A circumstance that does not clearly indicate a cohabiting relationship can thus be offset by the fact that another relevant circumstance strongly suggests that such a relationship exists.
14. It is essential that the cohabitation’s definition of cohabitant does not only apply to that law. According to section 1, second paragraph, the definition as starting point is also applied when the term cohabitant is used in other statutes. The scope of the definition is thus wide-ranging and it has an impact on several areas that do not only apply to the mutual relationship of the cohabitants, e.g. in terms of enforcement legislation, tax law and various forms of social security benefits.
15. The extent to which the cohabitants’ own attitude to whether they are cohabiting within the meaning of the law must be taken into account must therefore depend on the context in which the question arises. The Cohabitation Act assumes that it is the objective, factual circumstances that must be decisive for whether a cohabitation relationship exists (see, for example, Bill 2002/03: 80 p. 27). But if the matter essentially only concerns the parties themselves, it seems reasonable that a jointly expressed will on their part that they are cohabitants in practice is given great importance (cf. eg “Cohabitants and group housing” NJA 1994 p. 61) . Also otherwise, the parties’ own attitude may be important, almost as a circumstance that provides support for the assessment that cohabitation has sufficient statute or that it is a question of a relationship.
More about relationships
16. Through the concept of relationship in the legal text, the legislator – when the term marriage-like relationship could not be used – wanted to distinguish in a different way from the cohabitation definition the situations where e.g. relatives, friends or co-workers share housing and household community. Due to this, the preparatory work states that a relationship means that the persons shall live together in a relationship where sexual cohabitation is normally included (see Bill 2002/03: 80 p. 28 and 44).
17. This preparatory statement on sexual cohabitation cannot be understood as aiming at how it should be in the individual cohabiting relationship. The idea is rather to express that the persons should be in such an emotional relationship with each other that sexual intercourse is usually included in similar relationships (cf. the Law Committee’s report LU 1986/87: 28 p. 8). A relationship without sexual cohabitation can also constitute a relationship within the meaning of the law, and this applies regardless of the reason why no sexual cohabitation occurs.
18. What is crucial is instead that the relationship should be characterized by such a close community in personal terms that normally occurs between married people (cf. “The Cohabitants on Götabergsgatan” NJA 1989 p. 682). It is in the nature of things that it is not possible to describe in general terms what emotional ties of this kind include. Of importance in the assessment is whether there is a special affiliation and trust between the people and a willingness to share life together that is similar to what usually exists between those who choose to marry each other.
The assessment in this case
19. In the case, it is common ground that HR and SÖ lived permanently together at the time of death and had a joint household. It has emerged that they had then lived together and had a common economy for a considerable time. Not least the fact that they saw themselves as cohabitants speaks to a large extent that this shared housing was intended to last.
20. The investigation shows that HR and SÖ relied on and supported each other in difficult times and perceived the other as their closest relative. In interrogation, SÖ has described how close their emotional relationship was, that they loved each other, considered themselves cohabitants and planned to live and be together for the future. SÖ information about a deep and intimate emotional community is strongly supported by notes that HR made and text messages that she and SÖ sent to each other.
21. In an overall assessment, the investigation provides sufficient support that HR and SÖ were not only close friends but lived in such a close personal community that is to be regarded as a relationship within the meaning of the cohabitation.
22. The conclusion is thus that HR and SÖ were cohabiting when HR died. GR and LR are therefore not better entitled to insurance compensation. The judgment of the Court of Appeal must thus be upheld.
23. At this end, GR and LR shall jointly and severally reimburse SÖ’s legal costs. The amount requested is reasonable.
The case report on the Court’s website is available here.