Jurisdiction and applicable law
The Swiss Courts of the defendant’s domicile or the Swiss Courts of the plaintiff’s domicile if said plaintiff has lived in Switzerland for a minimum of one year are competent to grant a divorce.
Swiss law will govern the divorce, unless both spouses have the same foreign citizenship and only one is residing in Switzerland, which would result in their common citizenship’s law being applicable.
The application of Swiss law to the divorce proceeding does not necessarily mean that the ancillary effects of the divorce, such as the dissolution of the matrimonial property regime, the effects of paternity or the protection of minor will be governed by Swiss law.
Under which conditions may a divorce be granted in Switzerland?
There a three ways of getting a divorce in Switzerland:
- a) Divorce by joint request with a comprehensive agreement
The spouses jointly request a divorce and submit a comprehensive agreement on the consequences of the divorce along with any necessary documents and with joint applications in respect of the children.
- b) Divorce by joint request with a partial agreement
The spouses jointly request divorce and ask the Court to decide matters on which they cannot reach an agreement.
- c) Divorce at the petition of one spouse after having living apart
A spouse may petition for divorce if, at the time the petition is filed, the spouses have lived apart for at least two years.
The underlying principle in Swiss divorce law as regards to maintenance payments is that the spouses must after the divorce provide for themselves (the so-called clean break principle). However, if a spouse cannot reasonably be expected to provide for his or her maintenance, including an appropriate level of retirement provision, the other spouse must pay a suitable contribution.
In deciding whether such a contribution is to be made and, if so, by what amount and for how long, various factors are considered by the judge, such as the duration of the marriage, the standard of living during the marriage, the age and health of the spouses, the income and assets of the spouses, the possibility for a spouse to reintegrate working life.
For example, if the marriage lasted many years and if one of the spouses devoted himself of herself to the education of the children, this spouse will likely be allocated alimony by the judge. On the other hand, if the marriage lasted for a few years only and if the spouses are both capable of supporting themselves financially, no alimony will be allocated.
The amount of alimony to be paid will depend on the claiming spouse’s needs, the income at disposal and the standard of living of the spouses during the marriage.
Is it necessary to stay in Switzerland during the divorce procedure?
It is not mandatory to remain in Switzerland during the complete procedure. However, even in the simplest cases, for example when the parties are in full agreement on all points, the judge must hear the spouses at least once.
Parental authority and child custody
Since 1st of July 2014, shared parental authority has become the norm in Switzerland. This means the even in case of a divorce, both parents will in principle continue to exercise together parental authority, which covers the power to take important decisions on behalf of the children (place of residence, choice of schooling…).
Should the parties disagree regarding the custody of the children, the judge will have to take a decision which will be based on the child wellbeing. Following a change of law dated 1st of January 2017, it is mandatory for the judge to assess whether alternate custody would serve the interests of the children.
Division of assets
The division of assets will follow the marital regime applicable. In Switzerland, there are three marital regimes: (a) participation in acquired property, (b) community of property and (c) separation of assets.
Provided that they have not agreed otherwise in a marital agreement and provided no extraordinary marital property regime has come into effect, spouses are subject to the provisions governing participation in acquired property.
According to the participation in acquired property regime, the assets owned by the parties before getting married or received during the marriage as an inheritance or gift are considered as a spouse own property, while all other assets acquired by the spouses during the marriage are regarded as “acquired property” and are to be divided in half.
Retirement funds and divorce
The Swiss pension system is based upon three “Pillars”.
- The 1stPillar consists of the state pension (AVS), received from the age of 65 for men and 64 for women. The 1st Pillar cannot be split in a divorce.
- The 2ndPillar fund consists of a mandatory fully-funded pension scheme directly deducted from the employee’s salary, where both the employer and the employee contribute proportionally to the insured income. The 2nd Pillar is required under Swiss law to be equally split between spouses to ensure that each party receives retirement benefits post-divorce. The splitting process is regardless of the marital regime chosen by the spouses.
- The 3rdPillar is a private pension scheme, non-compulsory and offering tax advantages, consisting of savings or inheritance built up during employment in prevision of retirement. In a divorce, the 3rd Pillar is subject to the liquidation of matrimonial property, and will thus be function of the marital regime chosen by the spouses.
More information regarding divorce and family laws in Switzerland on www.legalexpatgeneva.com. For personal advise, please contact Nicolas Mossaz at Ochsner & Associés, 1 Place de Longemalle, 1204 Genève.
Phone: +41 22 786 88 66