Divorce or separation

Divorce under Swiss law

Divorce proceedings

The divorce court does not investigate the cause of the breakdown.

Divorce based on fault no longer exists.

Swiss law distinguishes between divorce by joint petition (with full or partial agreement) and divorce on the unilateral petition of one spouse.

In other words, the legislature distinguishes:

DIVORCE BY JOINT PETITION WITH FULL AGREEMENT

Where there are children of the marriage, the agreement must also cover the following points:

• whether joint parental responsibility is maintained;
• sole or shared custody;
• determining the residence of the minor children in the case of shared custody;
• standard contact of alternate weekends and half the holidays, or extended contact — for example from Friday to Monday plus one day a week, with or without an overnight stay, and half the school holidays;
• where applicable, determining the appropriate level of maintenance if the sum provided for falls short of actual needs;
• setting maintenance in age-related steps;
• providing for indexation, if appropriate;
• settling the question of family allowances and of the childcare credit;

On receiving the joint divorce petition with full agreement (with the agreement and the relevant supporting documents attached), the court will hear the parties, first separately and then together; they must confirm orally that they agree to the divorce in principle and to the terms of the agreement submitted.

The court will satisfy itself that the agreement and the joint submissions, in particular as regards the children, can be approved (the inquisitorial principle and the court's duty to act of its own motion apply).

DIVORCE BY JOINT PETITION WITH PARTIAL AGREEMENT

There is a joint petition with partial agreement where the spouses agree to the divorce in principle but differ on its terms (custody, contact, maintenance contributions, division of occupational pension assets (LPP), division of matrimonial property, and so on).

The court must then rule on the points that remain in dispute.

DIVORCE ON UNILATERAL PETITION

Where the spouses do not agree on the divorce in principle, either of them may petition unilaterally.

To be admissible, the petitioner must show either:

• that the spouses have lived apart for more than two years; or
• that continuing the marriage is unreasonable (serious grounds, not attributable to the petitioner, that make continuation of the marriage unreasonable).

In other words, a spouse can successfully oppose divorce proceedings if the two years of separate living have not elapsed, or if continuing the marriage remains reasonable before that two-year period expires. In such cases the petitioner must apply for measures for the protection of the marital union, so that the court authorises them to live apart.

Separation proceedings

Separation proceedings are known technically as

The governing provisions are Articles 172 et seq. of the Swiss Civil Code (CC).

Measures for the protection of the marital union are ordered within the framework of a marriage that subsists.

They must be ordered even where the marital bond has irretrievably broken down.

The court must consider the application and cannot require either spouse to proceed by way of divorce (SJ 1933 p. 537).

Summary proceedings (Art. 252 CPC) apply to applications for measures for the protection of the marital union (Art. 271(a) CPC).

Summary proceedings (Art. 252 et seq. CPC) apply to applications for measures for the protection of the marital union (Art. 271 CPC), the court nonetheless establishing the facts of its own motion (inquisitorial principle, Art. 272 CPC) and applying the law of its own motion (Art. 57 CPC). The question of spousal maintenance, however, is governed by the principle of party disposition (Art. 58 CPC).

Because such measures are subject to summary proceedings, the court's power of review is limited to the mere plausibility of the facts and to a summary examination of the law, the requirement of speed taking precedence over that of certainty (ATF 138 III 97 consid. 3.4.2; 127 III 474 consid. 2b/bb, in JdT 2002 I 352).

Maintenance contributions

In proceedings for the protection of the marital union, both the principle and the amount of the maintenance contribution owed under Art. 176(1)(1) CC are determined according to the respective financial means and needs of the spouses.

Where the financial situation is comfortable, so that the additional cost of running two separate households is covered, the spouse entitled to maintenance may claim that the contribution be set so as to preserve their previous standard of living — which forms the upper limit of the maintenance entitlement, so as not to pre-empt the division of assets (ATF 140 III 337 consid. 4.2.1; 137 III 102 consid. 4.2.1.1) — (ATF 121 I 97 consid. 3b and the references cited; judgments 5A_864/2018 of 23 May 2019 consid. 2.1; 5A_970/2017 of 7 June 2018 consid. 4.2).

The calculation must then be based on the expenditure needed to maintain that standard of living (ATF 115 II 424 consid. 3).

It is for the maintenance creditor to specify the expenditure required for their standard of living and to make it plausible, the court ruling on the basis of the supporting documents immediately available (judgment 5A_534/2019 of 31 January 2020 consid. 4.1 and the references cited).

If the spouses' income is insufficient to cover current maintenance costs, it may be required — depending on the specific circumstances — that maintenance be financed out of capital.

One spouse may thus be required to draw on their capital in order to meet the other's needs. Only actual items of expenditure are to be taken into account when calculating needs.

As regards the tax burden, the case law accepts that it may be taken into account where the financial situation is comfortable.

Conversely, the tighter the situation, the stricter one must be about the expenses allowed, the debtor's subsistence minimum under the Debt Enforcement Act (LP) then being decisive (ATF 140 III 337 consid. 4.2.3 and the references cited).

Sole custody or shared custody?

Shared custody is the arrangement whereby the parents divide the child's care alternately over broadly equal periods, which may be fixed in days, weeks or even months (judgments 5A_557/2020 of 2 February 2021 consid. 3.1; 5A_991/2019 of 19 January 2021 consid. 5.1.1; 5A_844/2019 of 17 September 2020 consid. 3.2.2).

The competent authority must nonetheless examine, irrespective of any agreement between the parents on shared custody, whether such an arrangement is feasible and compatible with the child's welfare (ATF 142 III 612 consid. 4.2, 617 consid. 3.2.3).

The child's welfare is indeed the paramount consideration when allocating parental rights (ATF 143 I 21 consid. 5.5.3; 141 III 328 consid. 5.4), the parents' interests taking second place (ATF 142 III 617 consid. 3.2.3 and the references cited).

The competent authority must assess, on the basis of the present situation and of that which prevailed before the parties separated, whether shared custody is genuinely capable of safeguarding the child's welfare.

To that end it must first examine whether each parent has parenting capacity, and whether they have a genuine ability and willingness to communicate and cooperate, given the organisation and the regular exchange of information that shared custody requires.

A marked and persistent conflict between the parents on matters concerning the child points to future difficulties in cooperation and will, as a rule, repeatedly expose the child to conflict, which may prove contrary to their interests (ATF 142 III 617 consid. 3.2.3; judgments 5A_991/2019 cited above consid. 5.1.2; 5A_844/2019 cited above consid. 3.2.2).

If both parents have parenting capacity, the competent authority must then assess the other criteria relevant to awarding custody to one of them.

The essential criteria include the geographical situation and the distance between the two parents' homes; the stability the child gains from maintaining the previous arrangement — shared custody being more readily ordered where both parents already cared for the child alternately before the separation; each parent's ability to care for the child personally; the child's age and their place within a sibling group or social circle; and the child's own wishes as to their care, even where they lack the capacity of judgement in that respect. These criteria are interdependent and their weight varies from case to case.

Thus stability, and the parent's ability to care for the child personally, weigh most heavily for infants and very young children, whereas belonging to a social circle is particularly important for an adolescent.

The parents' capacity to cooperate and communicate matters all the more where the child is already at school, or where a degree of geographical distance between the parents' homes calls for greater organisation (ATF 142 III 617 consid. 3.2.3; judgments 5A_991/2019 cited above consid. 5.1.2; 5A_844/2019 cited above consid. 3.2.2 and the references cited).

If the competent authority concludes that shared custody is not in the child's interests, it must then determine which parent is to have custody, applying essentially the same criteria and assessing, in addition, each parent's capacity to encourage contact between the child and the other parent (ATF 142 III 617 consid. 3.2.4; judgment 5A_991/2019 cited above consid. 5.1.2 and the references cited).

In assessing the criteria for allocating parental rights, the trial judge, who knows the parties and the child's environment best, enjoys a wide discretion (ATF 142 III 617 consid. 3.2.5 and the references cited; judgment 5A_142/2020 of 24 December 2020 consid. 3.2.2). The Federal Supreme Court will therefore substitute its own assessment for that of the cantonal court only with restraint. It will intervene only where the decision departs without reason from the principles established by legal writing and case law, where the judge relied on facts that should have played no part in resolving the case, or where, conversely, the judge failed to take account of circumstances that had necessarily to be considered (ATF 142 III 617 consid. 3.2.5 and the references cited; judgment 5A_557/2020 cited above consid. 3.1).

Joint or sole parental responsibility

Joint parental responsibility has been the rule since the new Civil Code provisions on parental responsibility came into force on 1 July 2014 (RO 2014 357), irrespective of the parents' marital status (Art. 296(2), 298a(1), 298b(2) and 298d(1) CC; ATF 142 III 1 consid. 3.3, 56 consid. 3).

Legal writing and case law make clear that this principle is departed from only exceptionally, where awarding sole parental responsibility to one parent appears necessary for the child's welfare.

Such an exception is conceivable in particular where there is a serious and lasting conflict between the parents, or a lasting inability on their part to communicate about the child, provided this has a negative effect on the child and sole parental responsibility offers hope of improvement.

Mere disagreements, of the kind found in most families and all the more so on separation or divorce, are not a ground for awarding sole parental responsibility, or for maintaining a pre-existing sole parental responsibility (ATF 141 III 472 consid. 4.3 and 4.7; 142 III 1 consid. 2.1). Nor is geographical distance between the parents, on its own, sufficient to depart from the principle of joint parental responsibility (ATF 142 III 1 consid. 3; 142 III 56 consid. 3).

Where there is no communication at all between the parents, joint parental responsibility does not safeguard the child's welfare.

It presupposes that the parents agree at least minimally on the main questions concerning the child and are capable of cooperating to some degree. Where that is not so, joint parental responsibility becomes almost inevitably a burden on the child, which grows as soon as the child becomes aware of the parents' disagreement. Such a situation also carries risks, such as delaying important decisions — for example concerning medical follow-up or treatment (ATF 142 III 197 consid. 3.5).

In assessing the criteria for allocating parental rights, the trial judge, who knows the parties and the child's environment best, enjoys a wide discretion (Art. 4 CC).

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