The legal situation regarding divorces in Switzerland

Swiss divorce law aims to regulate the consequences of a divorce as fairly as possible for both former spouses and their children. This involves ensuring the economic independence of both partners after the marriage and the division of joint property, such as the family home. If there are one or more minor children in the marriage, the focus of the disputes also includes maintaining the child's welfare through alimony payments and custody arrangements.

In general, no two divorces are the same. Nevertheless, there are legal basic conditions that determine how the divorce process can and will proceed. A crucial factor is the conditions under which you file for divorce.

Conditions for Divorce

The Swiss Civil Code (CC) distinguishes between two different conditions for divorce: First, there is the divorce by mutual consent under Article 111 et seq. CC, in which the divorce is jointly requested by both partners in court. This is further divided into:

• Comprehensive Agreement (Art. 111 CC): The partners have agreed on all the consequences of the divorce and submit the corresponding documents and applications (divorce agreement) to the court for review.
• Partial Agreement (Art. 112 CC): The divorce is requested by mutual consent, but there are disagreements about the consequences of the divorce, which the court will decide.

The second ground is divorce at the request of one spouse. Here, there are also two variants:

• Divorce after Separation (Art. 114 CC): One spouse requests the divorce after the spouses have lived apart for at least two years.
• Divorce due to Unreasonableness (Art. 115 CC): The two-year separation period can be shortened if the marriage has become unreasonable for one of the spouses due to severe and non-self-inflicted reasons.

A divorce has significant consequences for everyone involved, especially the couple's children. Decisions must be made about who will keep the family home, how the marital assets will be divided, potential alimony payments, and the distribution of child custody. While some couples can settle these matters amicably, others may face disagreements and conflicts. Therefore, the Swiss Civil Code provides guidelines to ensure that the consequences of a divorce and the subsequent obligations for all parties are regulated as fairly as possible.

Alimony: Spouses

Generally, both spouses are responsible for supporting themselves after a divorce. However, there are situations where one spouse, for example, the wife, might have given up her job to care for the children during the marriage, making it difficult or impossible for her to re-enter the workforce immediately. In such cases, the wife can claim post-marital alimony according to Article 125 CC.

The court will examine the financial means and needs of both partners during and after the marriage. Based on this assessment, it can set a pension that the wife receives for a specified period. A one-time lump sum payment is also possible (Art. 126 CC).

Alimony: Children

If you have minor children, both parents are required to continue child support payments after the divorce. The court determines the amount of child support based on the child's needs and the financial situation of the obligated parent (Art. 133 CC).

If you live with the child, your contribution to the child's maintenance is largely covered by your caregiving. Conversely, the other parent is required to make monthly support payments, provided they have an income above their own subsistence level. The amount of these payments is adjusted to reflect the proportion of childcare provided by each parent.

Custody

Since 2014, joint custody is the standard in Swiss divorces. The divorce court or the competent child and adult protection authority is responsible for the equitable distribution of parental rights and duties, including child support, the child's accommodation, caregiving shares, and personal contact with both parents.

The child's welfare and interests are always the priority. For example, a child can request to live alternately with both parents. Only if the court considers one parent's care to endanger the child's welfare can it grant sole custody to the other parent (Art. 198 CC).

Division of Assets and the Family Home (Property Law)

The division of marital assets is also a crucial part of the divorce process. Swiss property law (Art. 181-251 CC) governs this, determining how spouses divide their assets during and after the marriage based on the chosen marital property regime. This includes each partner's income and shared possessions, such as the family home. There are three property regimes:

• Participation in Acquired Property (Art. 181 CC)
• Separation of Property (Art. 247 CC)
• Community of Property (Art. 221 CC)

The property regime significantly influences how the division of assets is handled upon divorce. If you jointly own real estate or the family home, the partner with a greater interest in it typically receives ownership, and the other partner is compensated for their share of the property.

The cost of a divorce in Switzerland primarily depends on whether you file for a divorce by mutual consent or at the unilateral request of one spouse. In the case of an amicable divorce with a comprehensive agreement, the effort required by the court and lawyers is the lowest—resulting in the lowest costs for the procedure.

The more complex the situation and the more decisions the court has to make, the higher the divorce costs will be. Therefore, it is hardly possible to specify a flat rate for the cost of a divorce. Additionally, court costs vary from canton to canton.

The duration of a divorce in Switzerland also depends on the complexity of the case. Generally, an amicable divorce usually takes between one and six months. In contrast, if you are filing for a divorce at the unilateral request of one spouse, you typically need to have lived apart from your partner for at least two years before you can file for divorce. Only if continuing the marriage is absolutely unreasonable can you shorten this period and file for divorce earlier. Therefore, having a divorce agreement with a comprehensive or partial settlement offers the best chance for the shortest possible divorce duration in Switzerland.

Divorces are typically not only emotionally charged but also bureaucratically complex processes. Even in the case of an amicable divorce, it is important to understand the conditions for drafting a divorce agreement to ensure it can be enforced in court without further complications. The more contentious a divorce is, the more crucial it becomes to have knowledgeable counsel by your side to represent you and your interests in court.

In this regard, we recommend consulting a family law attorney when deciding to divorce. With their expertise, they can provide you with an overview of the applicable legal situation and your options in your specific situation. Especially in contentious divorces, the legal assistance of an attorney is particularly valuable and can have a significant impact on the outcomes of the divorce.