Äktenskapet – samhällets bestånd? - Om rätten att ingå äktenskap

Sammanfattning: In the 1969 directives to the committee reports that proceeded the introduction of the new Marriage Code (1987:230) in Sweden, the government expressed that the legislator is to be neutral towards individuals’ ways of cohabiting. This neutrality policy has become leading in the subsequent reforms of cohabitation legislation. In this essay, it is examined whether, and to what extent, societal and religious norms have affected the legal institute of marriage since the neutrality policy was introduced. The thesis is limited to two aspects of entering a marriage: same-sex marriage and bigamy as an impediment to marriage. In examining normative structures in the Swedish marital law, Max Weber’s theory of status and contract and Anna Christensen’s theory of normative patterns have been applied. Family law, as part of civil law, concerns private relations between individuals. Despite this classification, the concept of family is difficult to define in matters regarding law because of its close link to everyday life. Marriage can be looked upon as a civil contract, much like any other agreement. At the same time, marriage is a status marked by rules deriving from history and culture, as well as religion. In this lies the peculiar nature of cohabitation law. Fundamental values in society have had a strong influence over the rules concerning the right to marry. In family and marriage law lies functions that aim to affect people’s behaviour, solve conflicts and protect the weaker party. Marriage, specifically, has a symbolical function. The normative structures surrounding marriage are strong. The right to marry does not follow the classical development from status to contract, since marriage still is highly valued by the legislator. The neutrality policy that has been the outset of the recent reforms has not led to a value-free marriage legislation.