Dold samäganderätt i förhållande till den "dolde ägarens" borgenärer – En stötande acceptans av rättsordningen?

Sammanfattning: The need for economic protection in family law is the main reason for the cre-ated concept of hidden co-ownership in case law. Given the special communi-ty that arises in a marriage or cohabitation relationship, it can be seen as a nat-ural starting point that property purchased for joint use by one person, with contributions from the other, should be owned jointly. The construction of hidden co-ownership is based on commission acquisition and does not constitute actual ownership, but has been described in case law as an obligation-based claim for the hidden owner to be included as a co-owner of a share of the property against the open owner. This principle there-fore allows spouses and cohabitants to co-own property in more cases than if general property law principles were applied. Legal literature and case law have argued that giving a contract-based construction to a problem rooted in family law can cause various problems. Hidden co-ownership can be considered to exist between spouses if a com-mon intention at the time of acquisition can be shown. If this cannot be prov-en, a presumption of such an intention arises if the person claiming hidden co-ownership can prove that the property was acquired for joint use, that they contributed financially to the purchase, and that there is support for the parties' attitude at the time of acquisition being that the residence would be held with co-ownership. The legal rule can therefore be seen as an evidence rule - al-most a presumption rule. The presumption can therefore be broken by pre-senting evidence that any of the conditions are not present. When acquiring a joint residence, it is not uncommon for one party to acci-dentally become the sole purchaser of a property despite both parties contrib-uting to the acquisition. In these situations, the family law need for protection justifies a claim for hidden co-ownership. However, hidden co-ownership may exist in a situation where the family law need for protection is questiona-ble. Specifically, if the acquisition of the property has been made in the name of one spouse or cohabitant to hide the property from the other party's credi-tors. The concept therefore gives rise to difficult conflicts between the family law need for economic protection, and the third-party obligations-based claims against the hidden owner. The hidden co-ownership is firmly established in legal literature due to its incompatibility with other rules and has therefore given rise to a range of problems in almost all areas of law. It has been argued in case law that accept-ing the legal system's allowance for the hidden owner to hide their property from their creditors should be considered inconsistent and offensive. Legal literature and case law have argued that the protection interest that once existed for the hidden owner is no longer applicable with the same strength due to the introduction of new marriage legislation and cohabitation legislation since the institute was created. This thesis examines the relationship between the principle of hidden co-ownership for the joint residence of spouses and cohabitants, as created in case law, and the conflicts with opposing protection interests that arise in the application of law from a historical legal perspective. The purpose is to exam-ine the circumstances that the legal interpreter takes into account in the as-sessment of the parties' common intention in order to determine which protec-tion interests are prioritized and most strongly protected in the application of law. The conclusion is that the consideration of opposing protection values in the assessment of the principle of hidden co-ownership can be considered to have reached its peak. The family law protection interest can be considered to have a more protected position in the application of law and can almost be considered uncompromising in relation to the hidden owner's creditors. There needs to be some balance, in the form of justice, as some form of consequenc-es and predictability should be achieved in legal proceedings. For the type of situations examined in the thesis, it may be more suitable to treat a hidden owner's financial contributions through other regulations, such as loans or gifts, rather than through the concept of hidden co-ownership.