Marital conflict or separation

Marital protection measures

In most countries, separation means a couple ending their relationship in practical terms but with no legal implications. Swiss law, however, includes specific provisions for measures to be implemented in the event of marital conflict or separation, known as mesures protectices de l’union conjugal (MPUC) in French or Eheschutzmassnahmen in German. The objective of these measures is to resolve conflicts between the couple with a view to avoiding complete breakdown of the marriage, or, in the event of separation, to decide on the attribution of parental authority and how their assets will be divided up prior to divorce.

The conditions governing marital protection measures are set out in the Swiss Civil Code (CC) and the Civil Procedure Code (CPC). The process culminates in a decision taken by a judge.

Conditions

Marital protection measures are not automatic and a judge intervenes only if either or both you and/or your partner request it, and only if at least one of the following justifications applies:

• One of you has failed to meet your family responsibilities; or
• You disagree on a decision that will have significant consequences for family life.

The judge might remind you and your spouse of your responsibilities and can attempt to reconcile you.

If you are still together

At a spouse’s request, the judge may implement certain measures such as:

• setting the amount of any family maintenance contributions that either spouse must pay and any compensation due to either spouse for looking after the home or the children or supporting the other’s career development;
• revoking one of the spouse’s authority to represent the couple to third parties or act on the couple’s behalf if this authority is being abused.

If you separate

You have the right to end your relationship if your sense of identity, your safety or your family’s well-being are at risk. In practice, judges tend to interpret these permitted causes very flexibly – they usually just want to know that you are 100% sure of your decision and that the relationship is not salvageable.

You can ask the judge to rule on the separation by:

• deciding on maintenance contributions to be paid to the children and the spouse;
• imposing measures relating to the family home and furniture;
• dividing up your assets.

Procedure

The procedure described below is applicable in Geneva; other cantons may differ.

Marital protection measures are implemented via a summary procedure, and the judge rules on the basis of the facts presented and according to the ex-officio investigation principle, which means that additional information beyond that volunteered by the spouses can be requested and must then be provided. On the other hand, the aim of the summary procedure is to resolve the matter as swiftly as possible, so there won’t be an in-depth investigation.

Applying for marital protection measures

If you or your spouse is resident in Geneva, you address your request for marital protection measures to the lower court (Tribunal de première instance) using the forms provided here.

Attending a hearing

A hearing can be held, but is not necessary if the spouse’s arguments are clear and uncontested.

If a hearing does take place, both you and your spouse must attend in person, unless you have a good reason (e.g. ill health or old age). The hearing is an opportunity for the court to seek agreement between the parties.

Amending the measures

You can ask the judge to amend the marital protection measures if (and only if) the circumstances change.

How long do the measures last?

Marital protection measures are implemented indefinitely, but some of them (all except for division of assets and measures relating to children) end automatically if you resume your relationship. If you later divorce, on the other hand, the measures remain valid, but the judge may amend or revoke them during divorce proceedings (see below).

Divorce

Divorce is difficult at the best of times, and even more so when you’re in a foreign country and don’t know how it works. We’ve tried to make things easier by setting out, as simply as possible, the different ways that divorce can proceed in Switzerland, in accordance with Title Four of the Swiss Civil Code (CC).

N.B.: The dissolution of registered partnerships works in exactly the same way, so every reference below to “marriage” and “spouses” should be understood to include “registered partnerships” and “registered partners” respectively.

The judge presiding over the divorce is responsible for:

1. 1. 1. Declaring the divorce, subject to conditions;
      2. Ruling on the custody and maintenance of children under 18;
      3. Ruling on the settlement of the marital regime;
      4. Ruling on what happens to the family home;
      5. Ruling on the division of workplace pensions accumulated during the marriage;
      6. Ruling on alimony due to one of the spouses after the divorce.

You can apply for divorce jointly or unilaterally.

Joint application

If you and your partner make a mutual decision to end your marriage, you can submit the application for divorce jointly. The only condition to fulfil is for both parties to be in agreement, and you are not required to have been separated for a certain amount of time before applying. The judge must simply make sure that both spouses sign up to the agreement of their own free will and after giving it sufficient thought.

Complete agreement

If you have come to an agreement on the divorce and all related aspects (notably alimony, child maintenance and custody, the marital regime and workplace pensions), the judge simply ratifies the agreement and declares the divorce final.

Partial agreement

In the event that you and your spouse have agreed to divorce but haven’t been able to agree on the related aspects, the judge is responsible for settling the disputed elements before declaring the divorce final.

Unilateral application

You can apply for divorce unilaterally if you want to get divorced but your spouse doesn’t. This can be done in one of two ways:

Divorce following separation

If you want to divorce but your partner doesn’t, in most cases you will need to be separated for two years before the divorce can be finalised. The two years starts as soon as your spiritual, physical and economic relationship ends. Living apart is not strictly necessary during this time, but it does make it easier to prove that you have been living separate lives (for example, a rental contract showing the date when one partner moved out can serve as proof). That said, witnesses can testify that you are separated even if you continue to live under the same roof.

Divorce following irreconcilable breakdown of the marriage

If your marriage has become unbearable for serious reasons that are not your fault, you can unilaterally apply for an immediate divorce. In practice, this is extremely rare and is only permitted for very serious matters such as mental illness, sexual abuse, domestic violence or children from an affair.

Where should I make my application for divorce?

Couples in which at least one partner is non-Swiss and those living in different countries have a few options in terms of where to apply for divorce, defined in articles 59 and onwards of the Federal Act on Private International Law (PILA).

A joint application can be submitted in the Swiss place of residence of either spouse.

Unilateral applications, on the other hand, can be submitted in the place of residence of the respondent (whether in Switzerland or abroad), or in the Swiss place of residence of the applicant provided that he or she is Swiss or has been resident in Switzerland for more than a year.

The spouses’ places of origin or countries of nationality have secondary competence, so you could submit an application in one of those countries. If, however, your spouse applies to an authority with primary competence, that authority will take precedence. If you have a shared nationality, this may be a factor in determining the competent authority.

The authority competent to rule on matters involving children is that of the place where the children are usually resident – that is, for the most part, the location of the family home. In some cases, the tax domicile may be used to determine the place of usual residence.

Following the entry into force of new legislation in 2017, if you apply for divorce in Switzerland, it will be subject to Swiss law, regardless of your or your spouse’s nationalities.

How much does divorce cost?

The costs of divorce vary a lot: as an example, the court fees associated with divorce in Geneva can range from 600 to 40000 CHF.

Custody of children

Granting custody

In accordance with article 133 of the Swiss civil code (CC), the judge presiding over a divorce where children are involved is responsible for defining the parents’ custody rights and obligations, taking into account all factors affecting the child’s well-being as well as the child’s opinion. If the parents are in agreement, the judge will also take their preference into account, but the child’s best interests always take priority over the parents’ wishes.

Custody can also be covered in marital protection measures when making arrangements for the spouses to live separately.

Shared custody

By default, parental authority is shared, and this includes the right to determine where the child lives. However, this does not always translate into shared custody. A number of factors are taken into consideration to determine whether shared custody is in the child’s best interests:

• Whether both parents are capable of raising a child;
• Whether the parents are willing and able to communicate and cooperate well enough to make arrangements and to share information – if the parents are constantly in serious conflict, it will make shared custody very difficult;
• The geographical distance between the two parents’ homes;
• Each parents’ ability and willingness to foster a good relationship between their child and the other parent;
• Whether this arrangement would represent stability and continuity for the child with respect to their life before the separation – i.e. whether both parents took turns supervising the child during their marriage;
• Each parent’s availability to look after the child personally;
• The child’s age, family relationships and social circle as well as his or her preference – acknowledging, nonetheless, that a child cannot be expected to take responsibility for such an important decision.

The judge has a significant amount of discretion in terms of the weight given to each of these factors depending on the specific situation, though both parents demonstrating adequate childrearing abilities is considered essential for shared custody. If your children are very young, factors such as stability and whether you are available during the day to look after the child might take precedence, whereas the social circle might be considered more important in the case of a teenager.

Sole custody

If shared custody is not deemed to be in the child’s best interests, the judge will decide which parent has custody on the basis of the same factors. In this case, extra weight will be given to the parent’s ability to foster a good relationship between the child and the other parent.

Child support

The Swiss Civil Code (CC) covers three different kinds of post-marital maintenance payments:

1. Child support;

2. Spousal support (alimony);

3. Adult child support (for over 18s still in education or training).

Child support is determined based on the principles of ex-officio investigation and assessment, which means that the judge has complete freedom to investigate the case and award support, whereas spousal support is determined based on the cases made by each party.

The maintenance payments due to children and ex-spouses are separate (whereas previously they could be combined into a single amount due). Child support takes precedence, followed by spousal support and finally adult child support, subject to certain conditions.

Child support consists of two parts:

• Contribution to the cost of the child’s direct expenses, e.g. food, clothing, school fees or childcare expenses, etc.;
• Contribution to the living costs of the parent who has custody (or partial custody), if this prevents them from earning enough to cover their own needs. It is generally assumed that the children’s main guardian can work at the following rates, depending on the age of the child:

a. Pre-school child: no employment;

b. Child at primary school: 50% employment;

c. Child at secondary school: 80% employment;

d. Child aged 16 or over: full-time employment.

Note that these are merely guidelines and the judge can exercise discretion according to the specific circumstance. In some cases, it may be decided that it is in the child’s interests to be cared for outside the home (e.g. at a crèche) if that would be more economical and thus improve the parents’ financial situations.