Conditional Consent, Dynastic Rights and the Danish Law of Succession

Peter Kurrild-Klitgaard, Dept. of Political Science, University of Aarhus

An earlier version of this note was posted on the newsgroup alt.talk.royalty May 27th 1998 as The Danish Law of Succession: A Note on Conditional Consent and Dynastic Rights.

The Danish Tronfølgelov (Law of Succession) of 1953 states (§ 5, 3.) that if a dynast (other than the monarch) enters into marriage without consent that dynast loses any succession rights for himself (or herself) and for any descendants of the marriage. (This was actually more restrictive than the previous Law of Succession of 1853¹, which allowed for the dynast himself to inherit the throne, but excluded the descendants.)

The monarch cannot give consent alone but has to do so "in the Statsråd", i.e., the Council of State composed by the monarch, the heir apparent (or heir presumptive), and the members of the Cabinet. The consent given is as such an act of government, which, according to the Constitution (§ 14, 3), requires ministerial countersignature (Zahle 1995, I: 194, cf. Germer 1988, I: 27ff).

The demand for consent "in the Council of State" for the marriage of dynasts (other than the monarch) was introduced with the present Law of Succession in 1953 and its reintroduction of female succession to the throne, which expanded the number of possible individuals with succession rights. The purpose of the requirement was to make sure that a dynast maintains a connection with Denmark and, e.g., does not come under the authority of foreign powers (Sørensen 1973: 61).

The Law of Succession does not explicitly state that consent to marriage can be made conditional. Nonetheless, it seems to be the general interpretation that this is possible. It was, indeed, the stated purpose by Constitutional Commission (of 1946) in its justification of the suggestion on Pg. 5, 3 in the Law of Succession that some form of conditions may be required for giving consent to the marriage of a dynast: "The consent [for the marriage of a dynast] given by the Rigsdagen [i.e. two chambers of the parliament] may, however, depending upon the circumstances, be able to be made conditional upon that the children born in the marriage and their descendants either do not obtain succession rights to the throne at all or, at least, must be secondary to other dynasts." (Betænkning: 71).

Neither the Constitutional Commission nor the Law of Succession itself has stated that conditions can be required to be fulfilled in order to maintain succession rights. This has, nonetheless, been the interpretation of the Council of State, including King Frederik IX, in 1967. It has also been the interpretation of several prominent constitutional scholars (e.g., Sørensen 1973: 61-62; Ross 1983: 561n6). Most recently, in November 1997, it has been the interpretation of the Lovafdeling (i.e. "Law Department") of the Danish Ministry of Justice in a responsum. At no point has the interpretation of the Law of Succession as admitting for conditional consent been challenged.

The Conditional Consent of June 3rd 1967

The only time that consent to the marriage of a dynast has been given only under certain specific conditions was June 3rd 1967, when HM King Frederik IX gave consent "in the Council of State" to the marriage of his daughter, HRH Princess Benedikte to HSH Prince Richard zu Sayn-Wittgenstein-Berleburg. The consent was given subject to a number of conditions agreed to in writing by Princess Benedikte:

That Princess Benedikte would take up permanent residence in Denmark should she become the closest heir to the throne
That Prince Richard, in accordance with his statement of intent, under the same circumstances would take up permanent residence and apply for naturalization as a Danish subject
That any child born in the marriage, and any descendant of such, in order to maintain succession rights to the throne:
- take up permanent residence in Denmark
  - at the time where he (or she) should become the closest heir to the throne,
  - and no later than when he (or she) reaches the age of mandatory schooling according to the Danish educational laws
- apply for naturalization as a Danish subject upon reaching adulthood.

The Folketing, i.e., the Danish parliament, was informed of the conditional consent given by the Council of State in a letter from the Prime Minister, Jens Otto Krag, dated June 3rd 1967 (Folketingets Forhandlinger 1967-68, sp. 42-43).

The Succession Rights of Princess Benedikte's Children

The question of the succession rights of the children of Princess Benedikte was raised in 1997, when the Princesses Alexandra and Nathalie applied for naturalization as Danish subjects and the Naturalization Committee of the Folketing asked the Ministry of Justice for an opinion as to the succession rights of the princesses.

Minister of Justice Frank Jensen in a letter dated November 12th 1997 forwarded the answer prepared as a note from the Law Department of the Ministry of Justice. It was the conclusion of the Ministry of Justice that the consent given to the marriage had been conditional, that this was a legal procedure and that the princesses "could not be seen as having succession rights to the throne, since they, given what has been informed, have not taken up permanent residence in Denmark upon reaching the age of mandatory schooling." (Notits: 4; my translation).

The Ministry of Justice did not explicitly state if any other conditions could be seen as also possibly excluding the princesses, but it would seem that they could possibly also be seen as being excluded from succession due to not having applied for naturalization as Danish subjects upon reaching adulthood.

The Ministry of Justice did not comment on the succession rights of Prince Gustav, but since his situation is identical to that of his two sisters, it would seem that the same conclusion would apply. Accordingly, as of the Fall of 1997, the line of succession for the throne of Denmark, i.e., in succession to HM Queen Margrethe II, is limited to only four dynasts:

The conclusion has not been challenged by the princesses, their family, the Queen or any member of the Folketing. (One constitutional scholar has stated that the children of Princess Benedikte do have succession rights, cf. Zahle (1995, I: 194). It is, however, not clear whether his statement is based upon a critique of the conditional consent given to the marriage of Princess Benedikte or a lack of knowledge about it.)

Discussion

Despite the fact that the possibility of conditional consent to the marriage of a dynast has not been challenged, it is, nonetheless, obvious that conditional consent is not unproblematic, as indeed has been acknowledged by prominent Danish constitutional scholars (cf. Sørensen 1973: 62).

First, the possibility of conditional consent creates the potential for considerable uncertainty as to who has succession rights and who does not, as witnessed by the public confusion as to whether the children of Princess Benedikte were in line of succession or not. When exactly, for example, would it be the case that Princess Benedikte's children "lost" their rights of succession? Was it on the day of reaching the age of mandatory schooling? Or that year? Or what if they had come, say, two years later and inquired about their succession rights?

Second, any such uncertainty will, in the case of a dispute, raise the important question of who has the final word as to whether any succession rights have been lost or not (cf. Sørensen 1973: 62). Would it be the Højesteret (i.e., Supreme Court), which, after all, formally has the authority to declare acts of government and parliament unconstitutional? Or would it be the Council of State, which, on the other hand, has originally formulated the conditions? Or would it ultimately be the parliament, which in Danish constitutional practice may be seen as de facto having the final word in matters of interpreting the constitution?

Most fundamentally, while allowing for flexibility, which can accommodate special situations, the possibility of conditional consent introduces considerable arbitrariness due to the ultimately "political" character of the Cabinet, and potentially considerable uncertainty. (Given what the purpose of the rule was, and the time - two decades after the German occupation of the country - one can only guess that the rather special requirements were due to the fact that Princess Benedikte married a German citizen and that the Danish politicians were nervous about how the public might react, should it suddenly be the case that the heir to the throne was a German prince, who had never lived in the country and could not speak the language.)

The most important objection would seem to be that Princess Benedikte's children were in possession of succession rights, accorded to them by the Law of Succession - which has the status of a constitutional document and with the corresponding requirements for change - but that they were deprived of these, by a part of the executive branch - without any ruling by the body constituting the 'constitutional' court, the Supreme Court and even without any public act noting the change in the line of succession. Most importantly the original consent was given by one part of the executive branch - the Council of State - and later supported by another - the Ministry of Justice - none of which can themselves change the constitutional rules. Furthermore, such a change took place, supposedly, while the children were minors and due to no actions of their own.

Together these points raise serious questions as to the constitutionality of the deprivation of the succession rights of the children of Princess Benedikte. Since they, however, seem to have accepted the interpretation, it is unlikely that the matter should ever materialize into a real-world question. (It is worth noticing that the overall practice since 1953 has turned out to be quite restrictive. Since 1953 there have been six marriages involving Danish dynasts: Princesses Anne Marie, Margrethe and Benedikte, and princes Ingolf, Christian and Joachim. Of these only two have resulted in any potential descendants having any rights of succession (Margrethe, Joachim).)

Note:

It should be noted that Prince Richard, and his and Princess Benedikte's three children - Prince Gustav, Princess Alexandra and Princess Nathalie - all are accorded the style of Højhed (Highness) by the Royal Danish Court (cf. Kongelig Dansk Hof- og Statskalender), despite that they as members of the Princely House of Sayn-Wittgenstein-Berleburg only are Durchlaucht (Serene Highness). The style of HH does not seem to have been granted in any special act by HM the Queen [HM The King] and should probably be seen as a kind of courtesy title. There is also some precedence in Denmark for simply translating Durchlaucht as Højhed, since there is no exact equivalent in the Danish language.

References

Betænkning afgivet af Forfatningskommission af 1946. København: J.H. Schultz, 1953.
Folketingets Forhandlinger 1967-68, sp. 42-43.
Germer, Peter (1988): Statsforfatningsret, Bd. I. Copenhagen: Jurist- og Økonomforbundets Forlag.
Notits om Prinsesse Nathalie og Prinsesse Alexandra's arveret til den danske trone, November 11th 1997 (J.nr. 1996/310-20195). København: Lovafdelingen, Justitsministeriet.
Ross, Alf (1983): Dansk Statsforfatningsret, 3. ed. Ed. Ole Espersen.
Sørensen, Max (1973): Statsforfatningsret, 2. ed. Ed. Peter Germer. Copenhagen: Jurist- og Økonomforbundets Forlag.
Zahle, Henrik (1995): Dansk Forfatningsret, Bd. I: Institutioner og Regulering.
Copenhagen: Christian Ejlers' Forlag.

Link to Peter Kurrild-Klitgaard's homepage

Footnotes

(1) The Act of Succession of 1853, more precisely the Royal Ordinance settling the Succession to the Crown on Prince Christian of Glücksburg, did not say anything about royal marriages other than that "In this offspring [Prince Christian and Princess Louise] male after male and male from male, begot in lawful wedlock, the Crown shall descend according to the right of primogeniture and lineal agnatic Succession." The relevant provision concerning royal marriages was still in the Lex Regia of 1665, Art. XXI, which said: "Ingen Prinds af Blodet, som her i Riget er og udi Vores Gebeet sig opholder, maa gifte sig, eller af Landet reise, eller begive sig i fremmede Herrers Tieneste, med mindre han af Kongen Forlov dertil erlanger." ("No Prince of the Blood, who resides here in the Realm and in Our territory, shall marry, or leave the Country, or take service under foreign Masters, unless he receives Permission from the King.") The Act of Succession of 1953, Art. 5 third paragraph, is, as Kurrild-Klitgaard mentions, more restrictive than Lex Regia Art. XXI: "(3) Where a person entitled to succeed to the Throne enters into marriage without the consent of the King given in the Council of State, the person in question shall forfeit his right of succession to the Throne for himself and the children born of the marriage and for their issue." The Lex Regia says nothing about the consequences for seeking consent from the King.

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