Divorce (Switzerland)

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Divorce, or divorce for short , in the Swiss Civil Code, refers to the dissolution of a marriage by judgment.

International jurisdiction

For Switzerland that applies EheVO II of the European Union does not. According to Art. 59 of the Swiss Federal Act on Private International Law (IPRG) , Swiss courts have international jurisdiction if the defendant is domiciled in Switzerland, or the plaintiff, who is resident in Switzerland, is Swiss or the plaintiff has been at least one person Year in Switzerland. If the couple lives abroad, Swiss courts are nevertheless competent if one of the spouses is Swiss and it is impossible or unreasonable to bring an action at the place of residence of one of the spouses ( Art. 60 PILA, jurisdiction at home ).

Conflict of laws

The applicability is regulated in the federal law on international private law.

When it comes to assessing which law is to be applied to the divorce, Switzerland, unlike Germany and Austria, is generally not based on nationality but on the domicile of the spouse. If the place of residence is used as a connecting factor, this leads much more often to the application of own law, because very often only people with Swiss place of residence usually sue before Swiss courts. For example, the requirements for divorce are based on Swiss law if two Germans have been living in Switzerland for over a year.

The Swiss courts always apply Swiss law to the law of divorce ( Art. 61 Para. 1 PILA). This applies even if Swiss courts have jurisdiction in the home country under Art. 60 PILA (Art. 61 Para. 4 PILA). Something different only applies if both spouses are foreigners who have the same nationality and only one of them is domiciled in Switzerland (Art. 61 para. 2 PILA). If one of the foreign spouses has been in Switzerland for at least 2 years or if they are also Swiss, Swiss law must be applied if their home law does not allow divorce or only under extremely difficult conditions (Art. 61 Para. 3 PILA) .

Substantive law

In Switzerland, divorce is comprehensively regulated in the civil code (ZGB). A distinction must be made between divorce upon mutual request and divorce upon complaint:

Divorce upon mutual request (conventional decision)

This is regulated in Art. 111 ZGB . With the comprehensive, informally valid agreement (also with regard to the divorce cases), the liberal principle of freedom of contract is assumed. Thus, only free will and careful consideration are examined in court  - but not a longer life apart , which according to Art. 111 ZGB is not a requirement for a divorce.

Article 111 of the Civil Code reads:

  • If the spouses jointly request a divorce and submit a full agreement on the consequences of the divorce with the necessary supporting documents and joint applications with regard to the children, the court will hear them separately and together; it satisfies itself that the divorce petition and the agreement are free will and deliberation and that the agreement is likely to be approved.
  • If the court is satisfied that the divorce petition and the agreement are based on free will and careful consideration and that the agreement with the petitions regarding the children can be approved, the court shall pronounce the divorce.

It is permissible to submit a "sub-convention" which only contains certain consequences of the divorce (maintenance, property law, division of pension fund assets). The divorce judge then decides on the consequences of the divorce on which the spouses have not agreed.

Divorce at one's own request (so-called fight decision)

  • The prerequisite for this form of divorce is that the spouses have lived apart for at least two years when the action was pending or when the action was switched to divorce (Art. 114 ZGB).
  • If the continuation of the marriage is unreasonable for a spouse (for example due to physical violence ), the divorce can be applied for before the two-year period has expired (Art. 115 ZGB).

Reasons for divorce

The client does not have to show any reasons for the divorce in court or with a lawyer . According to Observer magazine , the reasons have no longer played a role since 2000.

Divorce costs

The court costs in the event of a divorce are several thousand francs. This does not include the legal fees. If the income only covers the living costs, an application can be made to dispense with the court costs.

Divorce and children

On July 1, 2014, joint custody was introduced in Switzerland , which automatically applies to all divorces, unless the best interests of the child are at risk and must be protected. Then one parent can have sole custody. The child must have a say .

history

In addition to the divorce based on a mutual declaration of intent by both spouses, there was a unilateral, officially controlled divorce in the Middle Ages in the form of the repudiation of the woman by the man. According to the Catholic idea of ​​the indissolubility of marriage, only a separation of table and bed had been recognized since the 12th century. Only the reformed regional church developed a state law of divorce, in particular because of adultery and "malicious abandonment". The moral courts ruled on the asserted grounds for divorce, but they seldom granted a divorce petition.

In the Helvetic Republic , only Reformed marriages were completely dissolved, while Catholic spouses could still only be separated from bed and table. In 1850 the federal law on mixed denominational marriages was enacted, which was followed in 1862 by a supplementary law on the relevant divorce modalities. With the Federal Constitution of 1874 , the federal law on the establishment and certification of civil status and marriage was passed. It introduced compulsory civil marriage and brought general, denominational recognition of divorce, with the regulation of the consequences of divorce remaining with the cantons.

Only with the partial revision of the constitution in 1898 was the federal government given civil law competence and thus the entire substantive divorce law within the framework of the Civil Code of 1907, which brought about the nationwide standardization of the reasons and consequences of divorce. In 1988, 2000 and 2004 the civil code was adapted to the changed marriage behavior in the population with increasing divorce numbers.

The pension equalization was last regulated with effect from January 1, 2017.

Web links

Individual evidence

  1. ↑ Tinka Lazarevic: Divorce: What's the fastest way? Observer , May 16, 2017
  2. ↑ Art. 111 Swiss Civil Code of December 10, 1907, admin.ch
  3. ↑ Divorces, divorce frequency Federal Statistical Office , accessed on July 28, 2017
  4. ↑ Ruth Reusser: Divorce. In: Historical Lexicon of Switzerland . April 7, 2006 , accessed June 27, 2019 .
  5. ↑ Michael Ferber: New divorce law: “Halbe-halbe” also applies according to the new rules NZZ , August 20, 2016