Divorces without a Lawyer: Conditions, Risks, Alternatives

In Switzerland, there is no law requiring legal representation in divorces. This applies to both consensual divorces and divorce suits. While it initially sounds advantageous to save at least on these costs, a divorce without a lawyer is not always advisable. This is partly because divorces in Switzerland are always judged and decided by a court. The court pays special attention to whether all agreements made are lawful and fair to all parties involved.

In this sense, it is to be noted that divorces without a lawyer are usually only advisable if the divorce is filed on a consensual basis. Through a divorce agreement, the still-married couple can settle the ancillary consequences among themselves, and only need to have these reviewed by the court. The more contentious points there are at the time of the hearing, or if you are filing a divorce suit, the more important it is to be aware of your rights and claims and how to effectively represent them. For laypersons, this is a difficult task, so legal representation is recommended in such cases.

If you opt for a divorce without a lawyer, the further procedure initially depends on whether it is a mutual or unilateral divorce. In a consensual divorce, you and your partner file a joint divorce petition (the divorce application), while in a divorce suit, you file it alone as the suing party. The responsible civil court is the one in your place of residence or your partner’s place of residence.

Consensual Divorce: Divorce Application

In consensual divorces, the court usually requires at the time of application that the divorcing couple submits not only the stated divorce request but also a complete agreement on the ancillary consequences – the so-called divorce convention under Article 111 Para. 1 CC. Most courts also require a series of documents that prove the personal situation and financial status of both spouses.

The Divorce Application

In the so-called divorce application, the spouses declare their mutual will to divorce. They also provide all personal data of both partners and state whether they will regulate the ancillary consequences themselves or if some aspects should be decided by the court. There are sample forms for divorce applications that you can usually download from the respective court’s website. However, there are no fixed formal requirements as long as you provide the necessary information and both sign the document by hand.

The Divorce Convention

In the divorce convention or divorce agreement, you settle before the application how you want to handle the ancillary consequences of the divorce. These include:

• The division of assets according to the marital property regime
• The fate of the family home
• The amount of post-marital maintenance, if applicable
• Custody of joint children
• Visitation rights for joint children
• The amount of child support
• Pension equalization
• Assumption of court costs

It is quite possible to draft the divorce convention yourself. Especially if you agree on the consequences without conflict or have a prenuptial agreement, this should not be too difficult. However, you should ensure that all agreements are lawful and fair – substantive and formal errors can lead to the rejection of the divorce convention by the court in the worst case.

Unilateral Divorce: Divorce Suit

If no agreement can be reached on a consensual divorce, the partner seeking the divorce usually only has the option of a divorce suit. In this case, it is advisable to seek legal advice or representation. Swiss civil law prefers consensual divorces, so there are more legal hurdles and regulations for plaintiffs in a unilateral divorce. According to Article 114 CC, a unilateral divorce can usually only be filed after at least two years of separation. The separation period generally begins with the declaration of the will to separate and the permanent spatial separation of the partners. The court must be able to clearly see that at least two years have passed since the separation.

If there are serious reasons for the impossibility of continuing the marriage, the two-year separation period may be shortened (Art. 115 CC). The court assesses the severity of the reasons and also checks that these cannot be attributed to the suing party. To avoid potential difficulties, at least legal advice is recommended before filing the suit. This ensures that your suit is not rejected by the court, and you can also get advice on your claims and courses of action.

A divorce always has legal consequences, which is why a divorce without a lawyer can pose several—possibly serious—risks. If you choose this route, you should weigh these risks and ensure you consider the following points to help your divorce petition proceed as quickly and smoothly as possible. A rejected divorce convention or divorce suit results in additional costs, which you intended to save by handling the process yourself.

Legal Validity

Regardless of the agreements you make or why you wish to file for divorce: all regulations and demands must always fall within the legal framework of Switzerland. Particularly for divorces, both the Civil Code (CC) and the Civil Procedure Code (CPC) must be observed. If an agreement violates applicable divorce law, this could, for instance, nullify your divorce convention in court.

Equality (Divorce Petition)

Although consensual divorces are easier to enforce than divorce petitions, they are nevertheless scrutinised in detail by the divorce courts. Every divorce petition and, in particular, every divorce convention is scrutinised to ensure that the will to divorce is genuine and uninfluenced on both sides. If, for example, the divorce agreement is formulated to the disadvantage of one partner, this could cast doubt on the consensual nature of the agreements and jeopardise the application.

In general, it is in the interests of both partners to carefully consider the collateral consequences of the divorce on their lives and, if in doubt, to double-check their personal and financial claims. Although the divorce agreement can still be amended or revoked before the hearing, once it has been approved it is difficult to enforce.

Timing (Divorce Suit)

For a divorce suit after separation under Article 114 CC, as the plaintiff, you must ensure that at least two years have indeed passed since the separation. If this is not the case, or if the court gets the impression that the separation has not lasted long enough, your suit can be dismissed—at your expense.

Reasons for Unreasonableness (Divorce Suit)

If you wish to plead unreasonableness for continuing the marriage under Article 115 CC, you should be able to clearly present the corresponding reasons so that the court recognizes that these cannot be attributed to you. If the reasons cannot be sufficiently proven, there is a risk that the suit will be dismissed. The same applies if the court does not recognize the reasons as severe.

A popular and effective alternative to legal representation or consultation for minor conflicts can be mediation. Mediation aims to facilitate communication between partners to reach objective and constructive solutions for a divorce convention. Alternatively, you can also seek non-lawyer separation counseling. Successful mediation creates a good foundation for future contact and especially for a conflict-free divorce. Additionally, mediation offers financial savings: with a comprehensive or partial agreement, you can file for a consensual divorce and potentially complete the process without a lawyer in a shorter timeframe.

In principle, there is no obligation to have a lawyer for divorce lawsuits in Switzerland. Nevertheless, it is advisable not to handle a divorce lawsuit entirely without legal assistance. A family law attorney can, for example, advise you on questions regarding the separation period or unreasonableness in your individual situation. This can potentially enable a faster initiation of the lawsuit.

A lawyer can also help you draft a legally valid lawsuit, so it is accepted by the court on the first attempt. Attorneys are knowledgeable contacts at all times and know your best options in all phases of a contentious divorce process.