In Iceland, both the husband and the wife are entitled to a divorce, if they file for it. In other words, the divorce will become final, even if one spouse denies the other a divorce. Refusing to sign under a divorce agreement can delay the process. Legal separation and divorce permits are issued by magistrates (sýslumenn) or their deputies with legal training, if both parties are in agreement. Otherwise, divorce must be sought before the municipal courts.

According to Icelandic legislation, a distinction is made between legal separation (skilnaður að borði og sæng) and divorce (lögskilnaður). 

LEGAL SEPARATION

If either one or both spouses have a child under 18 years of age in their custody, a conciliation procedure before a priest or a recognized representative of a religious organization to which they belong is required. If one or both spouses do not belong to any religious organization, the magistrate (sýslumaður) or the judge, depending on the authority in charge of the matter, may attempt conciliation. Before legal separation is granted, either a written agreement on the settlement of assets and debts shall be concluded, or an official settlement procedure initiated.

According to the law on marriage (Law in the Respect of Marriages), each of the spouses has a claim to one half of the net matrimonial property of the other. Exceptions can be made if a settlement of assets and debts would otherwise be clearly unreasonable for either spouse. This applies, in particular, to marriages of short duration when there’s been a great difference between the financial situations of the spouses upon entering into marriage, or if one spouse has, at the time of marriage, contributed significantly more than the other to their joint estate.

The division of property into equal halves does not apply if the spouses have made a pre-marriage settlement (pre-nuptial agreements) providing that specified property shall be separate property of either or if the provisions of a will or a donation specify that the property inherited/donated shall be the separate property of the beneficiary.  In other words if either one of you has inherited something it does not come into the division of property.

The mutual obligation of spouses to maintain each other financially shall not be affected by legal separation. When legal separation takes place a decision shall be taken as to whether one spouse shall pay alimony to the other, and as to the amount of the alimony. When legal separation takes place, the custody of, and support payments for children shall be decided upon. Parents’ disagreements about custody and support payments for children do however not prevent the granting of legal separation upon a claim from either of them, provided that other conditions are fulfilled.

Other effects of legal separation are for example termination of inheritance rights and duty of co-habitation. The legal effects of separation shall terminate if the spouses resume co-habitation, except for a short duration attempt to resume the union. You can also enter into other relationships but neither spouse can enter into a new marriage until after the divorce has become final.

DIVORCE

In case both spouses are in agreement to seek divorce, they’re entitled to divorce when six months have passed from the date the permit for legal separation was issued or judgment

pronounced. In any event, each spouse, upon application, is entitled to divorce when one year has passed from said dates.

Divorce follows legal separation or is granted directly if the following circumstances apply (skip over legal separation stage):
a) In case either spouse commits adultery or behaves in an adulterous way.
b) If it is established that one spouse has committed physical assault, or a sexual offence directed against the other spouse or a child residing in their home, and, in the case of physical assault, it has resulted in injury or damage to the health of the victim. The same applies if one spouse conducts himself or herself in a manner suited to cause serious fear that he or she will commit such assault/sexual offence.
c) If the spouses have lived separately by their own choice due to irreconcilable differences then they may receive a divorce directly upon application.

ENDING CO-HABITATION

It is a common misunderstanding that the same rules apply to a man and a woman in unwed co-habitation (common law marriage) as to married couples. The fact is, however, that the rules of dividing property and liabilities/debt into equal halves upon separation, does not apply to co-habiting partners, and they are not legally entitled to inheritance upon the death of the other. They do not enjoy the right of beneficial enjoyment of the joint estate (defer the estate settlement) after the death of a co-habiting partner. There is no specific act on co-habitation, but various stipulations can be found in legislation. According to tax law, for example, co-habiting partners can make a written request for joint taxation to the tax authorities, if the have a child together, share legal residence, the woman is pregnant by the man, or if they have been cohabiting for an uninterrupted period of at least one year. If the same circumstances apply, co-habiting partners enjoy the same right to social security as couples do according to the social security Act.

The matrimonial and separate property system does not apply to co-habitation. In court cases regarding disputes on the division of property/assets between former co-habiting couples, the right of one partner to ownership of up to a half of the others’ property (an apartment for example) has been recognized. However, this only applies to property acquired during the cohabitation period. Each partner has to show proof of his contribution to the household/estate. The length of the co-habitation period is also important and even the number of children they have together. 

If the partners cannot reach a settlement on the division on property upon ending co-habitation, either one or both of them may request that the settlement of assets and debts takes place by an official settlement procedure. The co-habitation must however have lasted for at least two years, or the partners had a child together or the woman being pregnant by the man.

There is no legal obligation to present a written agreement on the settlement of assets, as upon filing for divorce. Also, there’s no need to end co-habitation before a magistrate (sýslumaður) if the partners do not have children under 18 together. If they have minors they must reach an agreement on custody and support payments. If an agreement cannot be reached the dispute can be put before the municipal court. 

CUSTODY, VISITATION AND SUPPORT OF CHILDREN

Children have the right to associate with and have access to both of their parents in cases of divorce, unless it is not in their best interest. It is the responsibility of both parents to ensure that this right is respected.

During the divorce proceedings it is the responsibility of the sýslumaður or judge to be sure that the couple arrive at a fair agreement regarding custody, visitation and child support payments. The agreement must be validated by the sýslumaður.

Parents have the option of joint custody or awarding custody to only one of the parents.  However, it is important to note that parents choosing joint custody (sameignaleg forsjá) must register their child as having a legal address with one or the other of the parents, not both, and they must also decide on how visitation will be handled. In cases of joint custody
not all decisions regarding the daily upbringing of the child must be shared, only the most important decisions affecting the well being of the child. Parents with joint custody may not take the child out of the country unless they have the permission of the other parent.
When only one parent has custody the parents must still decide how visitation will be handled because the parent and child have the right to spend time together.
The custodial parent has the right to make all decisions regarding the well being of the child except in special circumstances, for instance moving with the child out of the country.
If an agreement cannot be reached then the matter of child custody is made by a court of law. In this case the judge makes a ruling regarding which parent receives custody, and may not award joint custody.

It is the legal obligation of all parents to take care of their children.  In cases of divorce both parents are responsible for negotiating the terms of child support. The parent with whom the child is living is to be paid support (meðlag) every month by the other parent. The sýslumaður oversees and verifies this process.  If the parents cannot come to an agreement regarding support they may request that the sýslumaður make a ruling. Parents requesting the help of a judge may ask that a ruling be made regarding, support, custody and visitation.

More information about child support payments may be found in the family chapter under “child support”.

Note: All of the above information may concern some of the most important rights in a person’s life. We therefore encourage people to seek professional advice concerning these issues. And again, never sign your name to anything unless you are 100% sure that you know what you are signing and what effect it will have on your rights.