According to Swiss law, child support is owed by the father and the mother, who must contribute together – each according to their ability ‒ to the child’s proper support and the costs related to the child’s care, education, and the measures taken to protect the child (Article 276, paragraph 2 of the Swiss Civil Code). The obligation to provide child support presupposes the existence of a legal parent-child relationship established in accordance with Articles 252 et seq of the Swiss Civil Code.

Under Swiss law, the principle mater certa est applies. The mother is always certain and is not required to establish her parentage of the child she gives birth to (Article 252, paragraph 1 of the Swiss Civil Code). With regard to the other parent, parentage is established:

• through marriage with the mother;
• by recognition; or
• by court judgment (Article 252, paragraph 2 of the Swiss Civil Code).

Indeed, a child born during the marriage is presumed to be the husband’s child (Article 255, paragraph 1 of the Swiss Civil Code). If the mother is married to a woman at the time of the child’s birth, and if the child was conceived by means of sperm donation in accordance with the provisions of the Federal Act of 18 December 1998 on Medically Assisted Reproduction, the mother’s wife is the other parent of the child (Article 255a, paragraph 1 of the Swiss Civil Code).

Parentage may also result from adoption (Article 252, paragraph 3 of the Swiss Civil Code).

When a parent-child relationship exists solely with the unmarried mother, the father may officially acknowledge the child (Article 260, paragraph 1 of the Swiss Civil Code). This official acknowledgement can take place before or after the birth of the child.

If the father refuses to acknowledge the child, the mother and the child may bring a paternity action to have parentage established in respect of the father (Article 261, paragraph 1 of the Swiss Civil Code). This action may be brought before or after the child’s birth by the mother or by the child (Article 263, paragraph 1 of the Swiss Civil Code).

Once paternity is legally established, the father can be held responsible for reimbursing relevant expenses incurred owing to pregnancy and childbirth (including the child’s initial layette and maintenance expenses for at least four weeks before and at least eight weeks after the birth), as well as the legal expenses of the parentage action (Article 295, paragraph 1 of the Swiss Civil Code).

There is no direct maintenance obligation on a person who is not legally related to the child. However, the resources of third parties living with the parents may indirectly be considered when determining the family’s expenses and income.

With regard to domestic situations, the Swiss courts of the domicile of either party have exclusive jurisdiction to rule on maintenance claims or claims arising from matrimonial law.

In cases involving international elements, the jurisdiction in child support matters will be examined in accordance with:

• the Lugano Convention, where its signatory states are involved;
• bilateral treaties (if any); and
• the Swiss Federal Act on Private International Law if no applicable convention exists.

According to the Swiss Federal Act on Private International Law, the action may be brought either at the place of the child’s habitual residence or at the domicile, or – in the absence of domicile – at the habitual residence of the defendant parent (Article 79, paragraph 1). When divorce proceedings are pending in Switzerland, the jurisdiction of the divorce court prevails (Article 63, paragraph 1). In addition, the jurisdiction of the Swiss court may be established by the voluntary appearance of the defendant (Article 6) or by a choice of forum agreement (Article 5).

In Switzerland, civil courts have jurisdiction to rule on maintenance payments.

No child support may be awarded in the absence of court proceeding. However, family allowances are granted to:

• all employees;
• all self-employed persons;
• individuals without gainful employment who have a modest income; and
• unemployed persons receiving maternity benefits.

The State may also intervene and provide social assistance to parents in need.

Swiss law does not prescribe a specific method for determining child support and alimony. However, a new calculation method applicable to spousal maintenance and child support was recently mandated by the Swiss Federal Supreme Court (see the Swiss Trends and Developments chapter in this guide). This method is a two-step process with the distribution of the surplus, which involves performing increasingly sophisticated and detailed calculations (ATF 147 III 265).

According to this method, it is necessary to – on the one hand – determine the financial means available (actual or hypothetical incomes) and to determine the needs of each family member on the other. For details of how the income based upon which maintenance payments are generally calculated is determined, please refer to 1.4 Definition of Income for Child Support Purposes.

The needs of the family are initially determined based on the “debtor’s minimum living standard under debt enforcement law” (the minimum amount required to live according to Swiss law, plus rent, basic health insurance premium, medical expenses, and transportation fees, as well as – for a child – custody-related expenses such as school meals). The minimum living standard of the debtor of the maintenance is protected. They cannot be ordered to pay child support that would not allow them to meet their basic expenses. In such circumstances, the maintenance payment will be reduced, even if it results in the child’s support not being fully covered.

If financial means allows it, the child support and alimony will extend to the “family law minimum living standard”. This will include costs such as telecommunications expenses, private insurances premiums, education, private pension plans, taxes, and savings subject to certain conditions. The judge will only consider charges that are actually paid and that are regular.

If a surplus remains after deducing these expenses from the family income, it will be shared among the family members according to the method known as the “small and large heads” rule. The parents’ share is worth twice that of the children. Adult children are not considered in this distribution.

The surplus serves to cover the costs of the children’s extracurricular activities, leisure activities, pocket money, and vacations. This rule may be adapted according to the circumstances. By way of example, in the case of a favourable financial situation, it will not be justified to allocate the entire surplus to a child if the child’s expenses do not justify it. However, this may be the case if the child engages in many costly extracurricular activities (such as sailing, horseback riding, golf, or karting). Furthermore, if the parents are not married, the calculation of the surplus will concern only the parent who owes the maintenance – not the surplus of both parents.

The judge has wide discretion on this matter but must always explain their decision.

There is also an alternative calculation method known as the “standard of living” approach, based on the family’s expenses, which requires all the family expenses during married life to be demonstrated. This method tends to apply in high net worth situations.

Temporary Orders

Under Swiss law, it is possible to obtain a maintenance contribution through urgent measures – in the absence of an adversarial hearing, based on mere plausibility, and with the aim of covering the child’s minimum subsistence needs – when the applicant demonstrates their precarious situation and the debtor’s failure to pay. This decision will remain in force until the final judgment.

Impact of Allocation of Parental Custody

Child support following separation or divorce is very often linked to the allocation of parental custody. According to Swiss case law, the custodial parent is deemed to fulfil their maintenance obligations through in-kind contributions, whereas the non-custodial parent is ordinarily required to fulfil their maintenance obligations by providing financial support. In cases of shared custody, if the parents’ incomes are equivalent, the costs will be shared equally between them and no support will be owed. If there is a disparity between the parents’ incomes, the parent with the higher income must contribute more financially than the other parent, even if the higher-earning parent is taking care of the child for an amount of time equivalent to that the other parent. The parent with the higher income may even be required to cover the direct costs of the child or pay a portion of the surplus to the other parent, so that the child benefits from a similar standard of living at both parents’ homes.

There are no other forms of child support than the payment of alimony and the in-kind contribution that a parent may be required to provide. The examples of housing and transportation are not relevant, as these needs are included in the amount of the maintenance payment.

Duration of Child Support Obligations

The age of emancipation is 18 years old in Switzerland. Under Swiss law, the parental support obligation lasts until the child reaches the age of majority (18 years old) (Article 277, paragraph 1 of the Swiss Civil Code). However, if the child has not yet completed an appropriate education upon reaching majority, the parents must continue to provide for the child’s support – if the circumstances reasonably permit this ‒ until the child has completed such education, provided it is completed within a reasonable time frame (Article 277, paragraph 2 of the Swiss Civil Code).

“Appropriate education” refers to acquiring the knowledge necessary for the child to earn a living in a field that corresponds to their interests and abilities. In choosing an initial education, the child is generally entitled to make mistakes. By way of example, failing the first year of university does not preclude entitlement to support. However, repeated attempts in various fields are not accepted. The possibility of a second or even third course of study may be considered if the previous education did not fully exhaust the child’s potential or enable them to achieve full earning capacity. This depends on the circumstances, the financial means of the parents, and the relationship between the child and their parents.

There are no grounds for a child to be emancipated other than reaching the age of majority. This possibility was abolished in 1996 when the age of majority was lowered from 20 to 18 years old.

Security for Child Support Obligations

There are no securities for child support obligations (eg, life insurance). However, there are alternative legal remedies available to secure the payment of child support – for example, when a parent neglects their obligation to provide child support, a specialised office designated by cantonal law (see 3.4 Administrative Agencies) assists the child or the other parent in obtaining the alimony payments (Article 290, paragraph 1 of the Swiss Civil Code). For details of other methods, please refer to 3.1 Enforcement of Child Support Orders.

Tax Implications

Child support is taxable in Switzerland, as are family allowances. They are considered income and must be declared as such by the beneficiary. The latter is entitled to family-related tax deductions. The debtor of the child support may deduct the alimony payments but is not entitled to family-related tax deduction.

Maintenance payments are generally determined based on the net income of the parents. This income includes not only the fixed salary but also commissions, bonuses, and other regular payments received over several years. When the income is fluctuating, the judge will average the income over the previous three years. For self-employed individuals, income is the net profit. In certain circumstances, personal deductions may be added to the net profit. The income generated by the wealth, if any, will be considered (as well as the wealth itself if the current incomes are insufficient to maintain the family’s basic needs).

The judge may deviate from the actual income of the parents and assign a higher hypothetical income, provided that one or both parents could achieve such an income with reasonable effort. Such income may be attributed to both the creditor and the debtor. Therefore, upon separation, the judge may require a spouse – even if they did not work during the marriage ‒ to seek employment to meet their needs. This is especially true when there are minor children, as case law requires parents to exhaust their full working capacity. This can imply that a parent must take a job even if it does not match their qualifications. This will also depend on the family’s financial situation. The more precarious the financial situation is, the stronger the obligation to seek employment becomes.

A hypothetical income may be attributed under two conditions: the parent has the effective possibility of engaging in a paid job and it is reasonable to expect them to do so. The judge must consider the parent’s age (there is no absolute age limit anymore), health condition, education, professional experience, spoken languages, and availability, as well as labour market conditions.

Additionally, case law holds that the custodial parent can begin working part-time (50%) when the youngest child turns four, quasi full-time (80%) when the youngest child enters secondary school (around age 12), and full-time (100%) when the youngest child turns 16.

Each spouse may request that the other disclose information regarding their income, assets, and debts (usually tax, banking and professional information). The court may compel the requested spouse or third parties to provide relevant information and produce necessary documents. The professional secrecy of lawyers, notaries, physicians, clergy, and their assistants is reserved (Article 170 of the Swiss Civil Code).

Requests for information that are vexatious or motivated solely by mere curiosity are excluded (ATF 132 III 291, paragraph 4.2). Regarding the scope of the right to information, it includes all useful information and requested documents that are necessary and appropriate to enable the requesting spouse to assess the situation and ‒ where applicable – assert claims.

Parties and third parties are obliged to co-operate in the taking of evidence (Article 160 of the Swiss Civil Procedure Code). If a party refuses to co-operate without valid reason, the court will take this into account when assessing the evidence (Article 164 of the Swiss Civil Procedure Code).

As mentioned in 1.2 Child Support Jurisdiction and Tribunal, with regard to domestic situations, the Swiss courts of the domicile of either party have exclusive jurisdiction to judge maintenance claims or claims arising from matrimonial law.

In cases involving international elements, the jurisdiction in spousal maintenance matters will be examined in accordance with the Lugano Convention (where its signatory states are involved), bilateral treaties (if any), and – if no applicable convention exists ‒ the Swiss Federal Act on Private International Law.

In Switzerland, the civil courts have jurisdiction to rule on maintenance payments.

No spousal maintenance may be awarded in the absence of court proceeding. However, the State may intervene and provide social assistance to parents in need.

According to Swiss law, no maintenance obligation exists between partners in the absence of a legal marriage. However, if the partners have a child together, the situation is different. The parent who is unable to cover their own basic expenses may be entitled to maintenance through a support payment towards care included in child support.

Children’s entitlement to support has indeed been recently modified to eliminate the disparities between the treatment of children of married parents and that of children of unmarried parents. In addition to the child’s actual costs (direct costs such as the minimum amount required to live according to Swiss law, a share of rent, basic health insurance premium, medical expenses, transportation fees, and custody-related expenses (eg, school meals)), the law now provides for the inclusion of a support payment towards care (indirect costs). The inclusion of such a support payment is based on the fact that, when caring for a child, it is often difficult ‒ depending on the child’s age ‒ to work full-time.

The financial consequences of this time spent caring for the child must be shared by both parents. This support is part of the child’s maintenance and does not constitute alimony for the other parent. However, this support is limited to covering the basic expenses of the parent (minimum living expenses, rent, health insurance premiums, medical expenses, and transportation fees). It is also subject to the condition that the parent has reduced their working hours to care for the child. A parent who was not working prior to having children is therefore not entitled to receive such a support payment towards care.

According to Swiss law, each spouse must contribute ‒ in proportion to their respective capacities ‒ to the “proper support” of the family during the marriage. The spouses agree on the manner each party contributes (financial support, domestic work, childcare, or assistance provided to the other spouse in their profession or business).

Each spouse is expected to provide for their own maintenance after divorce (ie, the “clean break” principle). In some circumstances, however, a duty of support towards the spouse may still exist (known as the principle of solidarity between former spouses). The spousal maintenance will then depend on:

• the agreement of the parties regarding the division of responsibilities during the marriage;
• the impact of the marriage on the financial situation of each spouse; and
• the ability of a spouse to be financially independent.

The alimony due to a spouse following separation is evaluated differently before and after the divorce (Articles 176 and 125 of the Swiss Civil Code). After the separation but before the divorce (ie, during the interim measures, which can last a few years – given that a divorce proceeding cannot be filed without the agreement of both spouses if they have not lived separately for two years), the prevailing situation is in principle maintained. By way of example, the spouse who was paying for all the family’s costs will usually be expected to continue to do so, whereas the spouse who did not work during the marriage will not be expected to find a job on a short-term basis.

In the context of interim measures, the judge will tend to be more generous than they would during divorce proceedings. In a divorce scenario, the objective is the economic independence of the spouses (the aforementioned “clean break” principle).

After the divorce, an alimony will then be considered only if:

• the marriage had a significant impact on the financial and professional situation of one of the spouses (the classic scenario being the one whereby a spouse – usually the wife – quit their job following the birth of the children to take care of the children); and
• this spouse cannot maintain on their own the standard of living they had during the marriage.

To determine whether spousal maintenance is payable, as well as its amount and duration, the judge will have to take into consideration specific elements. Per Article 125 of the Swiss Civil Code, these include:

• the age and health of the spouses;
• the duration of the marriage;
• the career prospects of the spouses;
• the income and assets of the spouses;
• the extent of childcare duties; and
• the spouses’ retirement expectations, including the foreseeable outcome of vested benefit entitlements accumulated during the marriage.

Where there are children of the marriage, a spouse’s potential for financial autonomy is dependent on the allocation of the parental custody and on the children’s ages.

Swiss law does not prescribe a specific method of calculation. However, the Swiss Supreme Federal Court has recently standardised the various cantonal practices by establishing a single method mandatory throughout Switzerland, which is described in 1.3 Calculation of Child Support, Duration and Ancillary Relief.

Generally, spousal maintenance payments continue for a limited period of time after the divorce. They may be reduced or even terminated in the event of a significant and lasting change in the financial or personal circumstances of either former spouse.

The obligation to pay spousal maintenance ends upon the death of the debtor or the remarriage of the beneficiary. A stable and long-term non-marital partnership of the beneficiary may also justify the suspension or termination of maintenance payments. Recent case law considers a relationship to be stable when it has lasted for more than five years or when cohabitation has not yet reached that duration but, owing to other factors, demonstrates sufficient stability.

Maintenance payments are generally considered taxable income unless they are determined as a lump sum (which typically occurs by mutual agreement between the parties or when there is a risk that the obligor will no longer fulfil their obligations). In such cases, the maintenance payment is neither taxable for the recipient nor deductible for the payer.

Income is determined for spousal maintenance purposes in the same manner as that for child support purposes (see 1.4 Definition of Income for Child Support Purposes).

The disclosure required in spousal maintenance proceedings is the same as that required in child support proceedings (see 1.5 Disclosure in Child Support Proceedings).

The obligation to pay maintenance ends upon the death of the debtor or upon the remarriage of the beneficiary (Article 130 of the Swiss Civil Code). A stable and long-term non-marital partnership of the beneficiary may also justify the suspension or termination of maintenance payments. For details of how a stable relationship has been defined in recent Swiss case law, please refer to 2.2 Calculation of Spousal Maintenance, Duration and Ancillary Relief.

Provided that they have an enforceable order, the child or their legal representative can:

• serve a payment order to the debtor, if the debtor resides in Switzerland (Articles 38 and 80 of the Federal Law on Debt Collection and Bankruptcy);
• request the seizure of bank accounts or assets ordered, subject to certain conditions (Article 271 et seq of the Swiss Federal Debt Enforcement and Bankruptcy Act); and
• ask the court to issue a debtor’s notice, subject to certain conditions (Article 291 of the Swiss Civil Code).

The purpose of issuing a debtor’s notice is to order the debtor’s employer or other parties owing money to the debtor (eg, salary) to make direct payments to the alimony creditor. The debtor’s notice is intended to secure current alimony payments, not arrears. The creditor must hold an enforceable order that establishes the alimony obligation and a clear default in payment is necessary – a single omission or isolated delay is insufficient. This measure facilitates the collection of alimony from a non-compliant debtor without the need to initiate a new debt collection process each month.

When the father or mother persists in neglecting their child support obligation – or when there is reason to believe that they are preparing to abscond, dissipate their assets, or conceal their assets ‒ the court may require them to provide appropriate security (a cash deposit, a bank guarantee, a suretyship, or the establishment of a pledge) for future maintenance contributions (Article 292 of the Swiss Civil Code).

Where one party violates the terms of a child support order, the non-defaulting party may submit the case to the specialised office designated by cantonal law, which may provide advance payments of maintenance under certain conditions (Article 290, paragraph 1 of the Swiss Civil Code). For further details, please refer to 3.4 Administrative Agencies. These advances do not discharge the debtor from their obligation to pay maintenance in full.

Moreover, failure to pay alimony constitutes a criminal offence under Swiss law (Article 217 of the Swiss Criminal Code). The creditor, as well as cantonal authorities, may file a criminal complaint against the debtor.

Child support may be claimed both for the future and for the year preceding the filing of the request (Article 279, paragraph 1 of the Swiss Civil Code). However, if no child support has been judicially fixed, the debtor may be released from owing arrears if the debtor demonstrates that maintenance has been provided either in-kind or in cash.

Child support granted in a final and enforceable court decision is owed. If the debtor fails to pay, they cannot discharge these debts, except by way of a settlement agreement.

It is customary to state that child support will be adjusted every year on January 1st according to the Swiss or cantonal consumer price index. The reference index is the one on the date of the court decision. The adjustment is conditional on the debtor’s income following the evolution of this index.

As mentioned in 1.3 Calculation of Child Support, Duration and Ancillary Relief (Security for Child Support Obligations) and 3.2 Remedies in Child Support Orders, when a parent neglects their obligation to provide child support, a specialised office designated by cantonal law assists the child or the other parent in obtaining the alimony payments (Article 290, paragraph 1 of the Swiss Civil Code). This office has two primary functions: to carry out the recovery of maintenance payments and to advance maintenance payments to the creditor when the legal conditions are met. It is not automatic and the non-defaulting party must file a request.

To obtain this office’s assistance, the party must:

• be entitled to maintenance established by either an enforceable court decision, a court-approved agreement, or a private agreement (only applicable to adult children);
• have their domicile or permanent residence in the canton; and
• not receive the maintenance payments due, either in whole or in part, or not receive them on time.

The creditor can, if they have an enforceable order :

• request the seizure of bank accounts or assets ordered, subject to certain conditions (Article 271 et seq of the Swiss Federal Debt Enforcement and Bankruptcy Act); and
• request the court to issue a debtor’s notice, subject to certain conditions (Article 132, paragraph 1 of the Swiss Civil Code) – for further details on the purpose of this action, please refer to 3.1 Enforcement of Child Support Orders.

As with child support obligations (see 3.1 Enforcement of Child Support Orders), where the debtor persistently neglects their spousal maintenance obligation ‒ or where there is reason to believe that they are preparing to abscond, dissipate their assets, or conceal their assets – the court may require the debtor to provide appropriate security (cash deposit, a bank guarantee, a suretyship, or the establishment of a pledge) for future spousal maintenance payments (Article 132, paragraph 2 of the Swiss Civil Code).

The remedies available to the non-defaulting party where the other party violates the terms of a spousal maintenance order are the same as those remedies available in the event that a child support order is violated (see 3.2 Remedies in Child Support Orders).

The other relief in spousal maintenance is the same as that in child support orders (see 3.3 Other Relief in Child Support Orders).

In Switzerland, child support is not entirely subject to parental agreement – as the judge has to ratify any such agreement ‒ and cannot be waived or limited by parents in a way that violates the child’s rights or welfare.

The judge may order an increase or a reduction in child support whenever there are determined changes in the child’s needs, the financial resources of the parents, or the cost of living (Article 286, paragraph 1 of the Swiss Civil Code). If the situation changes significantly, the judge may modify or terminate the support allowance at the request of the father, the mother, or the child (Article 286, paragraph 2 of the Swiss Civil Code).

The modification of child support requires new, significant, and lasting facts to have occurred since the original determination of the child support. These facts must affect either the maintenance debtor’s or creditor’s overall situation.

The purpose of the modification is not to correct the initial support amount but to adjust it to the new circumstances – for example, the birth of a new child, the marriage of one of the parents, or a significant increase or decrease in the maintenance debtor’s income.

The parents cannot opt out of the bases for modifying child support but they can agree on a modification. However, the ability to modify the order is not solely dependent on the will of the parents. Even if the parents reach an agreement, the court has the final say on child support arrangements ‒ ensuring that the child’s best interests are fully considered. Any agreement that does not meet the child’s needs or undermines the child’s rights can be overruled by the court.

In Switzerland, spousal maintenance is more flexible than child support, and the parties can modify the spousal maintenance order freely if they reach an agreement. The latter does not have to be ratified by a court.

If the financial situation of the debtor or the creditor changes significantly and permanently, the spousal maintenance payment may be reduced, terminated, or suspended for a specific period (Article 129, paragraph 1 of the Swiss Civil Code).

As with child support, the modification of spousal maintenance requires new, significant, and lasting facts ‒ affecting either the maintenance debtor’s or creditor’s overall situation ‒ to have occurred since the spousal maintenance was originally determined. Again, the purpose of the modification is not to correct the initial support amount but to adjust it to the new circumstances, such as those listed in 4.1 Modification of Child Support Orders.

Child support obligations are strictly protected under Swiss law. Even if child support is fixed by a binding settlement, the court retains the authority to modify this alimony if it is not in the child’s best interests.

If the child is a minor, the agreement must be signed by the child’s legal representative. Such an agreement can be made at any time. However, it is never definitive, as the judge has full discretion to review it.

Furthermore, the agreement must be approved by the child protection authority or ‒ if it is made within the context of judicial proceedings – by the court (Article 287, paragraph 1 and 3 of the Swiss Civil Code).

Per Article 287a of the Swiss Civil Code, the agreement must specify the following elements:

• the income and assets of each parent and each child considered in the calculation;
• the amount allocated to each child;
• the amount necessary to ensure the appropriate support of each child; and
• whether and to what extent the contributions must be adjusted for variations in the cost of living.

With regard to spousal maintenance, parties can contractually agree to exclude or limit the possibility of modification (Articles 127 and 130, paragraph 2 of the Swiss Civil Code). The legislator has refrained from exhaustively regulating the possible content of agreements between spouses. Thus, the principle of contractual freedom applies to agreements between spouses. However, the court has to approve the initial agreement on the effects of divorce, having ensured that the spouses have entered into it following careful consideration and of their own free will, that the agreement is clear and comprehensive, and that it is not manifestly unfair (Article 279 of the Swiss Code of Civil Procedure).

Prenuptial Agreements

Provisions for child support contained in a prenuptial (or postnuptial) agreement made by the future parents prior to the birth of the children are not considered by Swiss court when deciding later on the matter during a divorce or separation. The judge is never bound by the conclusions or the agreement of the parties on this matter but, rather, is solely guided by the child’s welfare.

On the contrary, spousal maintenance can be regulated by a prenuptial agreement, albeit with some limitations. A prenuptial or post-marital agreement dealing with spousal maintenance may consequently imply important uncertainties when divorcing in Switzerland. Indeed, according to the current case law, the judge should retain spousal maintenance provisions contained in a prenuptial agreement only if said agreement can be considered as not “obviously unfair”. This means that the judge should make a comparison between the alimony granted according to the prenuptial agreement and the alimony that would result from the application of the law at the time of the divorce to appreciate if the alimony granted in the prenuptial agreement is “obviously unfair”. According to important authors, however, the criteria of “obviously unfair” should be interpreted very restrictively.

To have a foreign child support order recognised and enforced in Switzerland, the order must be submitted to a Swiss court. The latter will review the order to confirm it meets the legal criteria. If accepted, the order is enforceable in Switzerland similarly to a Swiss-issued order.

In cases involving international elements, the recognition of the foreign child support order will be examined in accordance with:

• the Lugano Convention (where its signatory states are involved);
• the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations;
• bilateral treaties (if any); and
• the Swiss Federal Act on Private International Law, if no applicable convention exists.

The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance reflects a development towards the acceptance of the enforcement of private acts as enforceable instruments. However, it has not yet entered into force in Switzerland.

Each of these legal texts place their own conditions but all require that the order to be recognised respects public policy.

See 5.1 Recognition of Foreign Child Support Orders for process by and circumstances in which foreign spousal maintenance orders are recognised.

In Switzerland, enforcement can only happen after recognition of the foreign child support order and the foreign spousal maintenance order (see 5.1 Recognition of Foreign Child Support Orders). The same enforcement procedure applies for both alimonies, whether the orders are foreign or domestic (see 3.1 Enforcement of Child Support Orders and 3.5 Enforcement of Spousal Maintenance Orders).

In cases involving international elements, the jurisdiction in child support matters will be examined in accordance with the Lugano Convention (where its signatory states are involved), or with any applicable bilateral treaties, or  with the Swiss Federal Act on Private International Law (if no applicable convention exists).

The applicable law on child and spousal maintenance will be determined by the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations (Articles 49 and 83 of the Swiss Federal Act on Private International Law). It applies universally to all parties.

The applicable law in the following circumstances will be:

• child support – the internal law of the habitual residence of the child (Article 4 of the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations);
• spousal maintenance before the divorce – the internal law of the habitual residence of spouse who will receive maintenance (Article 4 of the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations); and
• spousal maintenance after the divorce – the governing law applied to the divorce (Article 8 of the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations).

Swiss courts are not automatically competent to modify a foreign child support order. They may do so only if Swiss jurisdiction is established and the child support order is recognised and enforceable (see 5.1 Recognition of Foreign Child Support Orders and 5.3 Enforcement of Foreign Support/Maintenance Orders).

Once the foreign order is recognised, the applicant can request a modification as per Article 286 of the Swiss Civil Code if there are new factual elements or the parents can agree on a modification (see 4.1 Modification of Child Support Orders).

Certain parts of a foreign child support order cannot be modified by Swiss courts. Indeed, Swiss courts cannot cancel or alter arrears of support already due under the recognised foreign judgment. Arrears are treated as a debt and remain enforceable in Switzerland once the order is recognised.

As with foreign child support orders (see 5.5 Modification of Foreign Child Support Orders), Swiss courts can only:

• modify a foreign spousal maintenance order if Swiss jurisdiction is established and the spousal maintenance order is recognised and enforceable; and
• modify certain parts of a foreign spousal maintenance support order ‒ others (eg, arrears of support already due under the recognised foreign judgment) cannot be cancelled or altered by the Swiss courts.

Once the foreign order is recognised, the applicant can request a modification as per Article 129 of the Swiss Civil Code (see 4.2 Modification of Spousal Maintenance Orders). The spouses are also free to agree on a modification.

Claims for child support are subject to a five-year limitation period (Article 128, subparagraph 2 of the Swiss Code of Obligations).

The existence of a personal relationship between the child and their parents makes it difficult for the child to bring an action against them. Therefore, the limitation period for claims by children against their parents does not begin to run until the child reaches the age of majority (Article 134, paragraph 1, subparagraph 1 of the Swiss Code of Obligations).

Claims for spousal maintenance are subject to a five-year limitation period (Article 128, subparagraph 2 of the Swiss Code of Obligations). Nevertheless, the limitation period does not run in respect of claims between spouses during the marriage (Article 134, paragraph 1, subparagraph 3 of the Swiss Code of Obligations).

Furthermore, maintenance claims cannot be extinguished by set-off against the will of the creditor (Article 125, subparagraph 2 of the Swiss Code of Obligations).

In proceedings concerning child support, it is generally accepted that court costs shall be allocated equally by the parties, unless a substantial marked imbalance in their financial capacities or procedurally abusive conduct justifies a different allocation (Article 107, paragraph, 1 subparagraph c of the Swiss Code of Civil Procedure).

Parties’ costs (as determined by the court and intended to cover attorney’s fees) are to be assigned by each party individually, unless there is a substantial marked imbalance between the parents’ financial capacities ‒ in which case, a child can obtain a participation to their lawyer’s fees.

Under certain conditions, the parties may be entitled to legal aid, which is a form of state assistance designed to support those who lack sufficient financial means.

In proceedings concerning spousal maintenance, it is generally accepted that court costs shall be allocated equally by the parties, unless a substantial marked imbalance in their financial capacities or procedurally abusive conduct justifies a different allocation (Article 107, paragraph 1, subparagraph c of the Swiss Code of Civil Procedure).

As mentioned in 7.1 Counsel Fees and Costs ‒ Child Support, parties’ costs (as determined by the court and intended to cover attorney’s fees) are to be assigned by each party individually, unless there is a substantial marked imbalance between the parents’ financial capacities.

Under Swiss law, there is the institution of provisio ad litem, which aims to enable a spouse to adequately defend their interests in judicial proceedings. The provisio ad litem is subject to the conditions that:

• the requesting spouse lacks sufficient financial means to bear the procedural costs; and
• the payment of such an advance does not encroach upon the minimum necessary for the debtor’s needs and the needs of those for whom they are responsible.

The provisio ad litem is a provisional advance that may be subject to reimbursement upon the final allocation of costs between the parties – notably, in the context of the liquidation of marital property.

Subsidiarily, and under certain conditions, the parties may be entitled to legal aid (see 7.1 Counsel Fees and Costs ‒ Child Support).