Divorce and separation
MARITAL UNION PROTECTION MEASURES
Marital union protection measures have a dual purpose. Firstly, they are designed to protect the marriage, particularly when one of the spouses is not fulfilling his or her duties, or in the event of disagreement on an important issue (e.g. modifying the power of representation, authorizing a spouse to represent the marital union, fixing maintenance contributions, authorizing the termination of the lease on the joint home, etc.) (art. 172 to 174 CC). When the marriage appears to have no future, these measures make it possible to suspend living together (without proceeding to an immediate divorce) and to organize the terms of separation, such as custody and visiting rights for minor children, maintenance contributions, allocation of the marital home and separation of property (art. 176 CC).
MARRIAGE ANNULMENT
In certain cases, a marriage must be annulled at the request of any interested party (art. 105 and 106 CC) (e.g. bigamy, forced marriage, incapacity of discernment, sham marriage). Under certain conditions, one of the spouses may request annulment of the marriage (art. 107 and 108 CC). The effects of annulment are similar to those of divorce. The marriage retains all its effects until the annulment judgment comes into force, with the exception of inheritance rights (art. 109 CC).
DIVORCE
Under Swiss law, a spouse may file a unilateral divorce petition if the spouses have been separated for more than two years (art. 114 CC), or earlier if there are “serious grounds” not due to the applicant spouse, which render the continuation of the marriage objectively unbearable (art. 115 CC). At any time, the spouses may also file a joint petition for divorce with full agreement (art. 111 CC) or partial agreement (art. 112 CC).
LIQUIDATION OF MATRIMONIAL PROPERTY REGIME
Swiss spouses can choose from three matrimonial property regimes: participation aux acquêts (default regime), separation of property and community of property. This choice, made by default or by notarized contract before or after marriage, influences the way assets are managed during the marriage and divided upon divorce, making it all the more important to seek the advice of a lawyer specialized in family law.
DIVISION OF PENSION FUNDS
In the event of divorce, the spouses must divide the occupational pension assets accumulated during the marriage equally, whether they are active, disabled or retired (art. 124 et seq. CC). Exceptions to this division may be agreed by the spouses or decided by the courts.
CHILD SUPPORT CONTRIBUTIONS
Regardless of their marital status, parents are obliged to contribute to the support of their children by providing care, education and financial support. The Swiss Federal Supreme Court has established a uniform method of calculation for the whole of Switzerland, based on the living expenses standard and the distribution of the surplus (ATF 147 III 265). This method requires a detailed analysis of the family's income and expenses, in order to determine the extent of each person's obligations.
SPOUSAL MAINTENANCE CONTRIBUTIONS
It is important to distinguish between maintenance during separation and maintenance after divorce. Post-divorce maintenance is calculated according to the impact of the marriage on the spouse's financial situation (“lebensprägende Ehe”). The Federal Court has standardized the method for calculating maintenance contributions for the child and spouse, applicable throughout Switzerland (TF 5A_311/2019 of November 11, 2020, TF 5A_892/2018 of February 2, 2021 and 5A_800/2019 of February 9, 2021).
DIVORCE OR SEPARATION AGREEMENTS
Most matrimonial proceedings begin or end with an agreement between the spouses. To be ratified by the court, the agreement must be well thought-out, voluntary, clear, enforceable, complete and fair.
SUPERPROVISIONAL AND PROVISIONAL MEASURES
Swiss law authorizes the matrimonial judge to take so-called “urgent” measures when the interests of one of the spouses or the children requires it (domestic violence, economic pressure, risk of child abduction, dilapidation of assets, etc.).
FREQUENTLY ASKED QUESTIONS
Under Swiss law, a distinction is made between divorce by joint petition and divorce by unilateral petition. Divorce on joint petition can be initiated with full agreement (art. 111 CC) or with partial agreement (art. 112 CC).
In the case of full agreement, the spouses submit an agreement to the judge, which regulates all the accessory effects of the divorce (marital home, parental authority, custody and visiting rights, maintenance contributions, liquidation of the matrimonial property regime, 2nd pillar), and ask the judge to ratify it. When the spouses agree on the principle of divorce, but cannot agree on all the accessory effects, they can ask the court to pronounce the divorce and settle the effects on which there is disagreement.
A unilateral divorce application allows a spouse to obtain a divorce without his or her spouse's consent if they have been living apart for at least two years (art. 114 CC), or if a serious reason makes it impossible to continue the marriage (art. 115 CC). The judge must also settle all accessory issues.
An amicable separation or divorce has many advantages in terms of the length of the procedure, costs and the practical arrangements for post-separation/post-divorce life, because the spouses have greater latitude.
Whereas contentious proceedings force the spouses to become “enemies”, an amicable separation or divorce facilitates and calms relations between the spouses over the long term, and helps to achieve a more durable settlement.
The most important thing in an amicable procedure is to choose the right lawyer. It is advisable to choose a lawyer specialized in family law in Switzerland, so that the separation or divorce agreement, which will have to be ratified by a judge, respects the interests of both parties and the legal requirements. It is essential that the lawyer be attentive to and trained in alternative methods of conflict resolution, such as negotiation, mediation or the collaborative law process.
Although the practice of having a single lawyer act for both spouses is common, it is contrary to the principle of prohibiting double representation and is therefore strongly disadvised. Indeed, even if the spouses seem to agree on everything, they may have diverging interests and require appropriate, individualized advice, which a common lawyer cannot provide.
The spouses may consult a lawyer jointly, but they must choose which of them will be represented. The lawyer can then continue to work to achieve an amicable solution, but will retain his or her freedom to act in his or her client's interests exclusively should a disagreement arise during the course of the proceedings.
It's always a good idea to seek advice from a specialized lawyer in Switzerland, as marriage will have an impact on your personal life (family name, parenthood, representation of the union, etc.), property (taxation, matrimonial property regime, maintenance obligations, etc.) and inheritance.
In particular, you have the possibility of choosing the matrimonial regime to which your assets will be subject from among the various existing matrimonial regimes (separation of property, community of property or the legal regime of participation in acquests).
This choice is essential, as it will determine not only how your assets are managed during the marriage, but also your rights over them in the event of divorce. Depending on your personal and professional situation, we can advise you and help you define the legal terms of your union.
Yes, under certain conditions your spouse can file for divorce in Switzerland, even if you live abroad.
Your spouse may file for divorce in the court of his or her place of residence in Switzerland, if he or she has been resident in Switzerland for at least one year or is a Swiss national (art. 59 LDIP).
If your spouse is not resident in Switzerland, but is of swiss, he or she may file a petition in Switzerland at his or her place of origin if he or she can show that the petition cannot be filed at the domicile of either spouse, or that it cannot reasonably be required to be filed there (art. 60 LDIP).
The division of Swiss occupational benefits (2nd pillar) falls within the exclusive competence of the Swiss judicial authorities (art. 63 al. 1bis and 64 al. 1bis LDIP).
Consequently, even if the foreign judge has taken into account the assets in Switzerland in the divorce judgment, these assets cannot be divided until a Swiss judge has made a ruling. Therefore, the only way to settle the division of the pension assets located in Switzerland is to file an application to complement the divorce judgment in Switzerland.
As long as you live together, you will be taxed jointly, which means that you must file a joint tax return and that your income and assets are added together (art. 9 al. 1 LIFD), in accordance with the principle of family unity.
However, as soon as you are no long living together, you are taxed separately for the entire tax period in which the separation occurs. For example, if you separate on September 30, 2024, you will be taxed separately from January 1, 2024. You will then have to file a separate tax return, independently of your spouse, and pay the tax due.
The tax consequences of a separation or divorce are not insignificant, especially if there are children or if maintenance contributions are paid. It's important to get the information you need to make the right choices.