Guest article: how to divorce in Switzerland

As part of our International Divorce series, Swiss divorce lawyer Sandra Strahm gives insight on how to divorce in Switzerland.

Divorce can be a challenging and emotional process, and understanding the legal procedures and regulations involved is crucial to navigate this life-changing event.

This article shall provide a brief overview of the divorce procedure in Switzerland.

1. Legal Framework

First of all, you must know that Switzerland is a civil law country. That is why in Switzerland the divorce and rules are based on the Swiss Civil Code, the Swiss Civil Procedure Code and the Swiss Federal Act on Private International Law (e.g. if one spouse is not Swiss). The legal framework establishes guidelines and procedures that govern the dissolution of marriage, division of assets, child custody, maintenance and the division of the pension fund. The judgements of the Swiss Federal Supreme Court are relevant to clarify the rules in relevant Code.

2. Marriage protection

The system in Switzerland has a unique procedure called marriage protection (“Eheschutz”). This instrument helps the spouses to settle the separation. This procedure is needed, if one of the spouses wants to divorce and the other one does not, and if they cannot find an agreement between themselves. To settle the two-year waiting period (which can of course also be longer, see the following point 3) you can file for the marriage protection at the same court as the divorce would be handled. The topics which are going to be settled in the marriage protection procedure are limited to: maintenance (for the spouse and the children), child custody, visiting rights and which spouse may stay in the family home.

3. Grounds for Divorce

Switzerland operates on a "no-fault" principle, which means that divorce can be granted without attributing blame to either spouse. The most common cases to divorce can be obtained on the grounds of if both spouses agree mutually to end the marriage or if the separation of the spouses are at least two years. If there is no mutual agreement to end the marriage than the other spouse has to wait for two years before the divorce case can be filed in court.

4. Mediation and Counselling

Before commencing divorce proceedings, Swiss law encourages couples to consider mediation and counselling. This step aims to promote amicable settlements and reduce the emotional and financial burden of litigation. However, in reality this instrument is not very often used by the spouses. Even if they find an amicable agreement during the mediation, the agreement must be in any case approved by the relevant civil court.

5. Divorce Process

a. Filing for Divorce: The divorce process begins usually with one spouse filing an application with the relevant local civil court. The application includes information regarding the spouses, their children (if any), assets, and the desired arrangements for child custody and financial support. It is also possible that the spouses agree mutually that they want to divorce and then they file together the application.

b. Court Proceedings: After the application is filed, the court schedules a preliminary hearing where both spouses and their legal representatives can present their arguments and proposals. In the first hearing the court tries to find an agreement between the spouses. The court may order additional hearings.

c. Division of Assets: The division of assets depend on the matrimonial property status of the spouses. Furthermore, it is relevant for the division of assets, if there exists a prenuptial agreement which includes e.g. relevant rules for the division of the assets.

d. Spousal Maintenance: The court considers various factors such as the duration of the marriage, financial wealth, and if it is possible for the spouse to take up a job (or increase the working pension) and to build up their pension fund.

e. Child Custody and Maintenance: According to law the parents have joint custody when a child is born. This will be also the case after the divorce. However, Switzerland differs between custody and child care. The parents can have e.g. joint custody over the child, but one parent can be the sole care taker of the child at the same time. Child maintenance in Switzerland does usually not end with age of 18 of the child. It usually ends if the child finished its first education.

f. Divorce Decree: Once all matters have been discussed and resolved, the court issues a divorce decree that legally ends the marriage. In general, the divorce decree settles all the relevant topics and the divorce is not resolved unless all topics are settled. The decree outlines the decisions made regarding asset division, child custody, pension fund and maintenance. It is binding for both parties. If one of the spouses do not agree with the divorce decree, they can appeal against it.

6. Role of Lawyers

While it is not mandatory to hire a lawyer for divorce proceedings in Switzerland, seeking legal counsel is highly recommended, especially when complex issues are involved.