Separation and divorce

In Switzerland, family affairs such as marriage, parenthood and divorce are regulated by the Swiss Code of Civil Law (ZGB, art. 90-251).
In the case of the dissolution of a binational marriage, the question arises whether Swiss law or the appropriate foreign law applies. If your ordinary residence is in Switzerland, you can initiate legal separation or divorce in Switzerland.

If a divorce process is pending before a court abroad, a Swiss court cannot take on the same case and vice versa.

If you live abroad and would like the separation or divorce to be regulated by a Swiss court, you need to move your ordinary residence back to Switzerland.
Swiss courts are not responsible for the recognition of a separation or divorce abroad. Please contact the responsible foreign consulate or the appropriate office for this purpose.
Switzerland recognises foreign separation and divorce decrees provided they do not infringe on fundamental principles of Swiss law.

Separation

1. Separation with mutual agreement
As long as you agree on the conditions of living separately, you do not necessarily have to appear in court. You have the option of drawing up a written separation agreement and of signing it together or of reaching oral agreements. However, in case of litigation, a mutual arrangement of this sort is not regarded as legal title on the basis of which claims may be asserted directly in court.

2. Legally authorised separation agreement
As a rule, it makes sense to have a separation agreement legally authorised; under certain circumstances, this may even be necessary.

As a separated individual, you can, for example, only claim social benefits or an advance on maintenance if you can produce a legally authorised separation agreement.
You may present to the court a complete separation agreement. The court will make its decision on disputed issues after hearing both parties and will then authorise the agreement. If disputes arise in the future, a legally authorized separation agreement provides you with legal title with which you may assert claims.

3. Separation based on matrimonial protection law
A spouse is entitled to dissolve the joint household for as long as its personality and economic security and the well-being of the family are seriously jeopardized by cohabitation (art. 175 ZGB). In response to a matrimonial protection application the Court may authorise the dissolution of the joint household and prescribe the terms of the separation.

Important: If the welfare and safety oft the family's members are at risk, the household may be dissolved immediately, and the court's authorisation may be obtained after the fact!

Legal consequences of a separation

• Spouses living separately are still seen as married in legal terms.
• Spouses living separately are still obliged to support each other.
• Parents living separately still have joint custody of their children; the separation agreement regulates parental care.
• Separation does not lead to any change in the system of marital property.
• Mutual titles to an inheritance and social security legislation claims (e.g. to pension fund assets) continue to exist in the case of a separation.
• Spouses living separately are generally taxed separately.
• A separation generally has no time constraints and can be dissolved at any time.

Separation modalities are generally recorded in a separation agreement.

Separation agreement
If you want to separate from your spouse, various issues need to be regulated depending on your domestic circumstances:

• Who will have custody of your children?
• What will the visiting rights of the parent without custody be like?
• Who will remain in the matrimonial home, who will move out?
• Who will pay whom how much maintenance?
• Who will cover any debts from the joint household?
• Should separation of property be applied for if the circumstances warrant it?

Important aspects for binational couples
With binational matrimony, the non-Swiss national has a right of residence as part of the reunification of the family or, in the first years of marriage, residence permit B.

With the introduction of the new Aliens Act (AuG) as of 1 January 2008, the residence permit will only be issued to, or extended for, non-Swiss spouses from third countries if the married couple lives together  (art. 42 AuG). The requirement of cohabitation does not apply if good cause is asserted and the family home is maintained (Art. 49 AuG).

This provision does not apply to EU/EFTA nationals or nationals of third countries who hold a permanent residence permit in an EU/EFTA member country.

Consequently, for "concerned parties" as defined by art. 42 AuG (requirement of cohabitation for nationals of third countries), the provision on residence becomes problematic in case of separation. Under art. 49 AuG "good cause" may exempt the married couple from the cohabitation requirement. However, it is currently impossible to predict the circumstances that will be recognized as "good cause" as defined by art. 49 AuG. Professional obligations and significant family problems are recognized as significant personal reasons. However, a prerequisite is that the marriage not have conclusively failed (e.g. it the couple attends family counselling or marriage therapy). If the marriage has lasted at least three years and a successful integration exists or significant personal reasons (marital violence, social reintegration in the country of origin impossible, an the like) exist, the residence permit will be extended even in the absence of cohabitation (Art. 50 AuG).

Binational couples having questions may obtain information from

Divorce

1. Divorce by mutual consent
1.1. Comprehensive agreement
"If spouses apply for divorce together and if they submit a full agreement on the consequences of the divorce with the required proof and with joint requests with regard to the children, the court will hear them jointly and separately; if the court is convinced that the application for divorce and the agreement are based on free will and extensive consideration, the agreement can probably be authorised." (ZGB art. 111, para. 1+2)
"If, after a two-month consideration period following the hearing, both spouses confirm in writing their desire to divorce and their agreement, the court will pronounce the divorce decree and authorise the agreement." (ZGB art. 111, para. 1+2)

1.2. Partial agreement
"The spouses can apply for divorce together and state that they wish the court to issue a decision on the disputed consequences of the divorce." (ZGB art. 112, para. 1)
As in the case of the comprehensive agreement on the desire to divorce, the court hears the couple on the consequences of the divorce they have agreed on and on their statement that the remaining consequences are to be judged by the court.
Each spouse makes request with regard to the disputed consequences of the divorce and the court decides hereupon in the divorce judgement. (ZGB art. 112, para. 1-3)

2. Switch to contested divorce
If the court reaches the decision that the preconditions for divorce based on mutual consent have not been met, it gives each spouse a deadline in which to replace divorce by mutual consent with a contested divorce. (ZGB art. 113)

3. Contested divorce
A spouse can apply for divorce if the spouses have been living separately for at least two years when the case goes to court or at the time of a switch to a contested divorce. (ZGB art. 114)
Before the two-year deadline has expired, a spouse can apply for divorce if s/he cannot be expected to remain in the marriage because of serious reasons that are not his/her fault. One party to a marriage may ask for a divorce prior to the end of the two year period in case she/he cannot be expected to remain within wedlock any longer due to grave problems beyond the appealing party's control. (ZGB art. 115)
Based on precedents there is no clear-cut definition so far for "grave problems", the courts as a consequence decide on a case-by-case basis.
If a spouse applies for divorce after living separately or because of unreasonableness, and if the other spouse agrees expressly or lodges a counter petition, the provisions pertaining to divorce by mutual consent apply accordingly. (ZGB art. 116)

Legal consequences of a divorce

• Divorce is the final dissolution of the marriage.
• In the case of divorce, the couple is separated in terms of the law of matrimonial property, i.e. their assets are distributed in accordance with the system of marital property.
• Decisions are made about maintenance payments (alimony for children and for spouses).
• Decisions are made about custody and visiting rights for the couple's children.
  

Divorce agreement (divorce convention)
Once a court has authorised a divorce agreement, it is exceptionally difficult to come back to it. The divorce agreement regulates:

• children's needs, parental rights and duties such as custody, visiting rights, child maintenance
• agreements based on property law between the spouses, such as divisions in terms of the law of matrimonial property and post-marital maintenance

Important aspects for binational couples
Since 1 January 2008, the new Aliens Act has prescribed the new conditions for a residence permit beyond divorce. After dissolution of the marriage, the right to an extension of the residence permit will reamin in effect if the marriage has lasted at least three years and a successful integration exists, or if significant personal reasons make continued residence in Switzerland necessary (Art 50 AuG) an see the section "Separation" above.

The extension of a residence permit may be denied in cases of abuse of law (Art. 51 AuG).

This new provision does not apply to EU/EFTA nationals. However, it does apply correspondingly to registered partnerships. The full text of the new Aliens Act may be found in PDF format at www.bfm.admin.ch.

The issue as to where the members of a divorced binational couple take up their residence will directly affect the provisions concerning mutual children. For example, a joint right of custody is not practicabel over long distances. Furthermore, visitation rights have to be adapted to the geographical circumstances for the non-custodial parent.
If maintenance payments are required for the couple's children and one parent lives abroad, there is the option of international maintenance collection - provided that the state in question has signed the international teaty. Information is available from the International Social Services or on www.ofj.admin.ch.

Further information
If you have unanswered questions about separation or divorce, you can contact the responsible civil court, which will provide you with the necessary information. You will find the addresses in the telephone directory of the canton you live in. In addition, you may refer to a Call Centre of our Association for personal counselling.

 

Last revision: July 2008