Grounds for Divorce

There are three grounds for divorce under Swiss law:

• divorce on joint petition (Articles 111 and 112 of the Civil Code);
• divorce on unilateral petition (Article 114 of the Civil Code); and
• divorce on serious grounds which make the continuation of the marriage unbearable (Article 115 of the Civil Code).

Swiss law does not recognise the principle of divorce for fault (divorce pour faute).

The same rules apply to same-sex marriages. However, there are some differences for registered partnerships. The dissolution of registered partnerships is governed by the Swiss Federal Act on Registered Partnerships between Persons of the Same Sex (LPart). The LPart provides for dissolution by joint petition (Article 29 of the LPart) or by unilateral request (Article 30 of the LPart).

To divorce, the parties are obliged to go before a judge, but the procedure varies depending on the grounds for divorce.

In the case of divorce on joint petition, the parties apply for divorce by filing a joint petition with the court and producing a complete agreement settling the effects of the divorce (Article 111 of the Civil Code). They may also ask the judge to settle the effects of the divorce (in this case, the agreement is solely on the principle of divorce; Article 112 of the Civil Code and Article 286 of the Civil Procedure Code). No separation period is required to file for divorce jointly. The judge must ensure that the parties have filed their petition and agreement after careful consideration and of their own free will (Article 111.2 of the Civil Code), and that the agreement is clear, complete and not manifestly unfair (Article 279 of the Civil Procedure Code). The judge checks carefully that the agreement concerning the children and the pension fund can be validated. In this respect, the judge is not bound by the parties’ conclusions.

In the case of divorce on unilateral petition, a spouse may file for divorce alone, but a two-year period must elapse since the separation before he or she can validly file for divorce on unilateral petition. Once this period has elapsed, there is an absolute right to divorce. The time limit begins to run from the end of cohabitation, and it is up to the divorce petitioner to prove this date. A judicial separation order is not required.

However, a single spouse may file for divorce before the two-year period has expired if there are serious grounds that make the continuation of the marriage unbearable (Article 115 of the Civil Code). These include cases of violence.

Service of Divorce Proceedings

Several international conventions on service apply in Switzerland, including the:

• HCCH Convention on Civil Procedure 1954 (Hague Civil Procedure Convention); and
• HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Hague Service Convention).

There is a central authority in each contracting state that undertakes to receive requests for service from other contracting states (Article 2 of the Hague Service Convention).

Religious Marriage

Article 97.3 of the Civil Code stipulates that a religious marriage may not precede a civil marriage. A religious marriage celebrated before a civil marriage is considered null and void.

The situation is different if a religious marriage is validly celebrated abroad. In this case, it will be recognised within the meaning of Article 45 para. 1 of the Federal Act on Private International Law (PILA).

Switzerland does not recognise religious divorces since a divorce must be granted by a judge under Swiss law. However, such divorces may be recognised if they:

• have been rendered in the state of the spouses’ domicile or habitual residence, or in the state of citizenship of one spouse, or recognised in one of those states (Article 65.1 of the PILA);
• have been subject to an official procedure, whether judiciary, administrative or religious;
• are recognised in the state in which they were rendered;
• have produced the legal effect of the dissolution of the marriage; and
• are not contrary to Swiss public order.

(Article 27 of the PILA).

Marriage Annulment

There are two types of action for marriage annulment: one subject to a time limit and the other which can be requested at any time.

The annulment of a marriage can be requested at any time if, at the time of the marriage (Article 105 of the Civil Code):

• one of the spouses was already married and the previous marriage had not been dissolved by divorce or the death of the previous spouse;
• one of the spouses lacked capacity at the time of the wedding and has not regained such capacity since;
• the marriage was prohibited due to kinship;
• one of the spouses has no intention of living with the other but wished to circumvent the provisions on the admission and residence of foreign nationals;
• a spouse has not married of their own free will; or
• one of the spouses is a minor.

Any person having an interest in the annulment of the marriage may file the action at the domicile of the spouses.  If one of these grounds is established, the petition for annulment is open-ended and imprescriptible. 

The annulment of a marriage may also be requested if it is established that one of the spouses:

• temporarily lacked capacity at the time of the wedding;
• consented to the marriage in error (either because the spouse did not want to get married or did not wish to marry that person); or
• consented to the marriage because they were intentionally deceived as to essential personal attributes of the other spouse.

A petition for annulment of the marriage must be brought within six months of the ground for the annulment becoming known. There is an absolute statute of limitations of five years from the time of marriage (Article 108.1 of the Civil Code).

Judicial Separation

There are two types of judicial separation (for both same-sex and opposite-sex marriages), which are outlined below.

Legal separation (Article 117, Civil Code et seq)

If a ground for divorce is given, the spouses can individually or jointly petition the court for a separation order instead of filing for divorce. This type of legal separation is rare and intended for couples who, for example, do not want to divorce due to:

• religious reasons;
• their age;
• estate consequences; or
• a negative impact of divorce on the widow’s or widower’s pension under the rules of an occupational pension plan.

In such cases, a legal division of property takes place (Article 118.1 of the Civil Code).

Dissolution of the joint household (Article 175 of the Civil Code et seq)

One spouse is entitled to discontinue the joint household if their personal rights, their financial security or the welfare of the family are seriously endangered by living together (Article 175 of the Civil Code). This allows for a separation when one spouse unilaterally intends to begin the two-year separation period in accordance with Article 114 of the Civil Code.

Jurisdictional Grounds

Swiss courts have jurisdiction over divorce if their jurisdiction contains:

• the domicile of the defendant spouse; or
• the domicile of the claimant spouse if the claimant has been resident in Switzerland for a year or is Swiss.

(Article 59 of the PILA).

If the spouses have no domicile in Switzerland but one of them is a Swiss citizen, the courts of his/her place of origin in Switzerland may have jurisdiction over divorce if the action cannot be brought at the foreign domicile of one of the spouses or it is unreasonable to do so (Article 60 of the PILA).

In principle, the judge in charge of the divorce or of the legal separation also has powers to rule on accessory effects. However, international treaties, such as the Lugano Convention, take precedence (Articles 1.2 and 63.1 of the PILA).

The above-mentioned rules also apply to the dissolution of same-sex couples’ registered partnerships (Article 65a of the PILA).

Domicile, Habitual Residence and Nationality

The domicile of individuals is in the state in which they reside with the intention to remain permanently (Article 20 of the PILA).

The definition of domicile in the Federal Act on International Private Law consists of an objective element (the physical presence of a person at one place) and a subjective element (the intention to remain at this place permanently). The domicile is located where the centre of the vital interests is objectively determined to be, by reference to the family’s financial and social interests. A minimum length of stay is not necessary.

The habitual residence of individuals is in the state in which they live for a certain period of time, even if this time period is limited from the outset (Article 20 of the PILA.)

The citizenship of a person is determined by the law of the state of the citizenship in question (Article 22 of the PILA).

Contesting Jurisdiction and Suspension in the Event of Foreign Jurisdiction

A party can contest the jurisdiction if the conditions of Article 59 of the PILA are not fulfilled.

Under the Federal Act on Private International Law, if the same parties are engaged in proceedings abroad based on the same causes of action, the Swiss court will stay the proceeding if it can be expected that the foreign court will, within a reasonable time, render a decision that will be recognisable in Switzerland (Article 9.1 of the PILA).

The date of the first act necessary to institute the action is decisive in determining when a court in Switzerland is seized. In a petition for divorce, proceedings are therefore initiated at the very first step, by the filing of the petition (Article 9.2 of the PILA and Article 62 of the Civil Procedure Code). The exact moment the foreign court is considered seized is determined by the foreign law.

Where a party requests a stay of proceedings because a foreign court has been seized, the judge must examine whether the conditions for suspension on the grounds of prior proceedings are met. If this is the case, the judge must suspend the proceedings in Switzerland, and will dismiss the action as soon as a foreign decision that can be recognised in Switzerland is submitted to it (Article 9.3 of the PILA). However, if the conditions are not met, the Swiss court shall reject the request for a stay of proceedings and continue to examine the case, regardless of whether the proceedings continue abroad.

Where there is exclusive Swiss jurisdiction, for example in matters relating to Swiss pension funds or in application of the Hague Child Protection Convention, a referral to a foreign court, even if previously seized, will have no effect on Swiss jurisdiction.

The grounds for jurisdiction for commencing financial proceedings depend on the type of financial issues that arise. In principle, these are either to settle the maintenance contributions due to the spouse and/or children, the liquidation of the matrimonial property regime, or the division of pension funds.

Generally speaking, if the Swiss court has jurisdiction to rule on the divorce, it also has jurisdiction to rule on the ancillary effects, subject to international conventions, such as the Lugano Convention, if applicable, for maintenance contributions. Of course, if the conditions for jurisdiction are not met, the opposing party may object to the jurisdiction of the Swiss court. In principle, if the conditions for jurisdiction are not met, the application will be rejected. On the other hand, the proceedings may be suspended, particularly in the event of lis pendens.

Finally, the courts can hear financial claims in Switzerland after a foreign divorce. This happens in particular when the Swiss judge is called upon to supplement a foreign judgment that does not rule on one of the relevant financial issues, or of course when a party requests the modification of a foreign judgment. Furthermore, in occupational pension matters, there is exclusive Swiss jurisdiction if funds are held in the hands of a Swiss pension fund.

Several international conventions on service apply in Switzerland, including the:

• HCCH Convention on Civil Procedure 1954 (Hague Civil Procedure Convention); and
• HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Hague Service Convention).

There is a central authority in each contracting state that undertakes to receive requests for service from other contracting states (Article 2 of the Hague Service Convention).

The process and timeline for financial questions depend on which type of proceedings they are integrated into, particularly whether they are independent claims or claims integrated into divorce proceedings.

Property Regime

The choice of a matrimonial property regime influences the division of the assets in the case of divorce, death or change of matrimonial regime.

Swiss law provides for three matrimonial property regimes, but the spouses can include specific clauses in a prenuptial or postnuptial marital contract in a public deed derogating from or supplementing the matrimonial property regime chosen, within certain statutory limits.

Shared acquired property (Articles 196 et seq of the Civil Code)

This is the default Swiss matrimonial property regime, which always applies when the spouses have not made a specific choice for an alternative regime in a marital contract agreement.

Under this regime, there is a distinction between:

• individual property, including assets belonging to a spouse before the marriage, or acquired later by gift or inheritance; and
• acquisitions, which include assets acquired mainly through work or income from individual property during the marriage.

Income from individual property usually qualifies as acquisitions. This includes income from trusts (depending, however, on the kind of trust, periodicity of distribution, etc) and from shares in a company. But whether a property is an individual’s property, or an acquisition is scrutinised by the judge in the light of all the circumstances.

In the case of divorce, each spouse recovers their individual property and is entitled to half the value of the other spouse’s acquisitions, less half the value of their own acquisitions (Article 207. 1 and 215.1 of the Civil Code).

In addition, the spouses must settle what they owe each other and their debts to third parties. A debt is linked to the property to which it is objectively connected or, where there is doubt, to the relevant acquisitions (Article 209.2 of the Civil Code). During the division of property, a compensation claim arises when acquisition debts were paid from the individual property of one spouse or from the acquisitions of one spouse (Article 209.1 of the Civil Code).

Concrete assets, such as real estate or cars, are estimated at their market value at the time of the liquidation of the matrimonial regime. Bank assets and other receivables are valued as of the time of the filing of the divorce application.

In addition, if a spouse has contributed without compensation to the acquisition, improvement, or preservation of assets, and if an added value exists at the time of division, the spouse has a claim that is proportional to the amount of their contribution.

There is a presumption under Swiss law that if no proof of a spouse’s sole ownership over an asset can be provided, the asset is presumed to be co-owned by the spouses (Article 200.2 of the Civil Code).

Joint property (Articles 221 et seq of the Civil Code)

Each spouse owns their own individual property, which consists of items for the exclusive personal use of a spouse, and of certain claims for compensation. Administration and disposition over common property must be performed jointly and separately from everyday management. Consequently, a spouse’s ability to transfer certain assets to a company or a trust is very limited and requires both spouses’ consent (Article 228.1 of the Civil Code).

Spouses rarely choose this Swiss matrimonial regime.

Separation of property (Articles 247 et seq of the Civil Code)

The marriage has no effect on the spouses’ assets. Each spouse is entitled to freely dispose of their assets and to transfer them to a third person, company, or a trustee, except the family home, which is protected by special matrimonial legal provisions and requires the agreement of the other spouse.

In the case of divorce, a division of property is not necessary, and each spouse retains their assets and there are no monetary compensation claims between spouses.

Trust

If a spouse is a settlor of a trust, the question arises whether the trust assets should be taken into consideration in the liquidation of the matrimonial property regime. The decisive question is whether a spouse can validly transfer assets into the trust.

If a transfer into a trust is valid, the assets are no longer considered to be the spouses’ property and are in principle not considered in the liquidation of the matrimonial regime.

However, such assets can be considered when calculating the spouses’ matrimonial property claims.

In the case of a “sham trust”, the transfer of assets is not valid, and the assets remain in the settlor’s and/or in the deprived spouse’s ownership. However, transfers made to a trust by a spouse during the marriage will be considered when computing the spouses’ matrimonial property claims if the transferred assets qualify as acquisitions and the transfer was made either:

• within five years prior to the dissolution of the marital property regime, without consideration and without the other spouse’s consent (except for usual gifts); or
• with the intent of diminishing the other spouse’s share in the matrimonial regime (Article 208 of the Civil Code).

The transfer will therefore be considered invalid, and the value of these assets will be added to the acquisitions of the spouse and, in principle, increase the other spouse’s monetary claim in the case of divorce. If the remaining assets are insufficient to compensate the spouse in accordance with the divorce decree, the deprived spouse has a direct claim against the trustee and possibly against a beneficiary up to the amount of the shortfall (Article 220 of the Civil Code; Article 15.1b of the HCCH Convention on the Law Applicable to Trusts and on their Recognition 1985 (the “Hague Trusts Convention”)).

Financial Orders to Regulate or Reallocate Assets or Resources on Divorce

Depending on the outcome reached by the judge, for example in the liquidation of property relations, he or she may order one spouse to pay a lump sum to settle all accounts. The judge may also award full ownership of a property in Switzerland to one of the spouses, or even order the sale of the property by auction.

In the case of pension funds, the court can order Swiss pension funds to transfer an amount from one spouse’s account to the other, in principle to a pension fund.

In matrimonial property settlement matters, the judge is bound by the parties’ submissions and cannot award anything other than what is requested.

Identifying Assets and Disclosure Process

The court will be informed of the assets of the spouses through various documents, including tax returns, and of course by the allegations of each of them. The judge may order the parties to produce documents relating to their financial situation and may also contact third parties directly, in Switzerland or abroad, through mutual assistance, to request documents not produced directly by the spouses. The court does not conduct exploratory searches, concentrating its enquiries on third parties who are likely to have information relevant to the resolution of the dispute.

In case of divorce, in deciding whether a maintenance contribution is to be given and, if so, in what amount and for how long, the court must consider the following non-exhaustive criteria:

• division of duties during the marriage;
• duration of the marriage;
• standard of living during the marriage;
• age and health of the spouses;
• income and assets of the spouses;
• extent and duration of childcare still required of the spouses;
• vocational training and earning prospects of the spouses; and
• expected entitlements of private or public pension plans.

The calculation is made on a case-by-case basis. Support tables are not used. The case law of the Swiss Federal Supreme Court has developed some principles for calculating maintenance contributions, but the cantonal judge has discretionary power to decide the amount of the maintenance contribution.

The actual income earned by the parties is taken as the main basis for determining the maintenance contribution. A hypothetical income can be considered if it is reasonable and possible to realise it. Income includes not only income from work, but also income from assets.

A spouse who raises one or more children is in principle not required to engage in gainful occupation until they have turned four. After that, in general:

• Working part-time (50%) is required after the youngest child has turned four.
• Working part-time (80%) is required after the youngest child has turned twelve.
• After the youngest child has turned sixteen, the caretaking parent is expected to work full-time.

The costs of caring for and raising the child (contribution de prise en charge) are calculated by taking into consideration the essential needs of the caring parent, which are added to the direct or effective costs of the child.

Post-marital support is normally paid in periodic, usually monthly, instalments. If circumstances justify it, the court may also grant a lump-sum payment (Article 126. 2 of the Civil Code).

A spouse can ask the judge to award provisional alimony for the period of the divorce proceedings.

In separation proceedings, the judge decides on the right to and the amount of the maintenance contribution (Article 176.1 no. 1 of the Civil Code) based on the economic capacity and respective needs of the spouses. A hypothetical revenue can at this stage already be set by the judge.

During the period of separation, the right to maintenance is broader than in divorce because the ties of the marriage are still existing. The spouses are entitled to maintain their economic standard of living, whereas this is not the case during the divorce. However, the principles set out above also apply in the event of separation.

Spousal maintenance may be awarded for a fixed term or until the retirement of the debtor.

After their retirement, the divorced spouses will each benefit of the old age provisions.

A marital contract (contrat de mariage) is binding on the court and no ratification is therefore needed. A marital contract allows the parties to predict with almost absolute certainty what will happen post-divorce to assets they already own or will acquire during the marriage. This kind of marital agreement can be executed before or after the marriage. Spouses can adopt one of the three possible matrimonial regimes under Swiss law:

• shared acquired property (Articles 196 of the Civil Code et seq);
• joint property (Articles 221 of the Civil Code et seq); or
• separation of property (Articles 247 to 251 of the Civil Code).

These regimes can be adopted or modified at any time, within the limits of the law. The desired marriage contract can include a choice of foreign law for the matrimonial regime (Articles 52 and 53 of the PILA) and, if entered in Switzerland, must be in the form of a public deed (Article 184 of the Civil Code). The form of a marital property agreement is valid if it fulfils the requirements of the law applicable to the agreement or of the place where it was entered. Prenuptial agreements entered abroad are recognised in Switzerland if they were drawn up and executed in a valid form and do not violate Swiss public policy.

Recognition of Foreign Pre-nuptial Agreement

The spouses may choose:

• the law of the state in which they are both domiciled or will be domiciled after the celebration of marriage;
• the law of the place of celebration of the marriage; or
• the law of a state of which either of them is a citizen.

(Article 52.2 of the PILA).

A marital agreement on the matrimonial property regime, which does not provide for the other effects of a divorce, qualifies as a marital contract and is not subject to judicial review for fairness.

Prenuptial and postnuptial agreements for children and pension funds are not binding at all on the Swiss court.

The admissibility of the regulation of post-marital maintenance in a marriage contract is subject to judicial ratification, which will not be given if the result deviates too significantly from the solution that the judge would reach by applying the law.

Under Swiss law, cohabitation is the community of life formed by a heterosexual or homosexual couple living together in a marital relationship without being bound by the ties of marriage or registered partnership. There is no legislation that explicitly governs cohabitation, and it is therefore up to the courts to determine the criteria for defining a relationship as cohabitation. Cohabitation implies a stable and lasting community having the appearance of marriage.

As cohabitation is not regulated by law, it is advisable to draw up a written agreement. This document does not need to be notarised if it does not contain instructions regarding inheritance.

No mutual support claims are possible, even if couples have lived together for a long period of time.

Legal provisions governing simple partnerships are applicable for certain financial aspects of cohabitation. In principle, the rules of a simple partnership (Article 530 and seq of the Code of Obligations) apply when the cohabitation aims to achieve a specific goal or economic prosperity and the cohabitants work together to achieve this goal, and not only to meet the needs of the household (for instance a common real estate project).

In the case of termination without contract or amicable settlement, liquidation follows in principle the rules of simple partnership, insofar as this simple partnership has been admitted. In such cases, each person recovers the assets they have provided, and the accumulated profits/losses are shared equally among the partners (Article 549 of the Code of Obligations).

Non-payment of a Financial Order

Any claim against debtors with their domicile in Switzerland must be collected through proceedings under the Federal law on Collection of Debts and Bankruptcy 1889 (LPD) (Article 38). The LPD applies to claims based on judgments rendered in Switzerland or abroad.

The procedure starts with the notification of an order of payment, which may be opposed by the debtor. If so, a judge decides on this opposition through summary proceedings if the claim is based on a judgment (Article 80 of the LPD). If the claim is based on a foreign judgment, the judge will first rule in an ancillary decision on the enforceability of the decision in Switzerland, including in the attachment proceedings.

If the claim is upheld, the assets of the debtor can be seized by the Debt Collection Office and the liquid assets remitted to the creditor (Article 89 of the LPD). Illiquid assets, such as movables or real estate properties, are sold (in principle in an auction (Article 125 of the LPD)), and the proceeds of the sale remitted to the creditor (Article 144 of the LPD).

These principles apply to the enforcement of any financial judgment granting a claim, whether rendered in Switzerland or abroad. If the judgment is rendered abroad, it must be recognised subject to exequatur in Switzerland.

If parents neglect to take due care of a child, the court can order their debtors – employers for instance – to make payment in whole or in part to the child’s legal representative (Article 291 of the Civil Code).

Under Swiss law it is a criminal offence not to pay spousal or child maintenance if the debtor has the means to do so, and a complaint is filed (Article 217 of the Criminal Code). The cantonal authorities and agencies, as well as the creditor, can file a complaint.

International Enforcement

If the financial order does not relate to a claim but to other financial rights, for example title on real estate, the matter is governed by the Civil Procedure Code. A Swiss judge can order enforcement measures at the request of the successful party (Article 236.3 of the Civil Procedure Code). If so, the judgment is immediately enforceable (Article 337.1 of the Civil Procedure Code).

If these enforcement measures were not ordered, a request for the performance of the judgment must be presented to the enforcement court (Article 338 of the Civil Procedure Code). The applicant must establish that the requirements for enforcement apply and show the necessary physical records as evidence (Article 338.2 of the Civil Procedure Code).

In international matters, the enforcement of a foreign decision in matrimonial matters may be made under either:

• international conventions, in particular the Lugano Convention or the Hague Maintenance Convention; or
• the Federal Act on International Private Law if there is no specific international convention.

Foreign orders are not directly applicable in Switzerland. For example, a foreign order rendered in divorce proceedings abroad ordering a bank to block an account when spouses claim they are entitled to part of the funds deposited with the bank would have no direct effect. If such an order is rendered in a country that is a party to the Lugano Convention, and if the defendant has been heard in the foreign proceedings (or if they have been in a position to appeal abroad the decision), the requesting party can ask for enforcement of the foreign order by a Swiss judge in Switzerland (Article 38 of the New Lugano Convention). However, if the order was rendered in a case between the spouses only, it would require specific additional enforcement measures to be enforceable against the bank in Switzerland.

A foreign order can provide a basis for Swiss interim measures (Article 261 of the Civil Procedure Code), which can be rendered ex parte, provided that:

• the claimant is likely entitled under the applicable law to the assets to be seized;
• there is a danger that the assets would disappear; and
• the foreign court will render a decision enforceable in Switzerland on the merits within a reasonable time.

Family law proceedings are not conducted in public. The ban on public hearings also applies to the media. However, many decisions are accessible on court websites in redacted form, although the family concerned should not be recognisable (Article 54.4 of the Civil Procedure Code).

A settlement hearing is conducted first in contested divorce proceedings (Article 291 of the Civil Procedure Code). At subsequent stages of the legal proceedings, the court will repeatedly attempt to establish agreement between the parties.

Mediation is widespread in Switzerland. By contrast, collaborative legal proceedings are relatively rare. Arbitration proceedings, which in any case can only address the question of marital property settlements in international cases, are not used to resolve marital disputes in Switzerland.

Articles 213 to 218 of the Civil Procedure Code set out preconditions that must apply for the court to recommend that parties subject themselves to mediation.

However, the parties are not under any obligation to subject themselves to mediation before or during divorce proceedings.

Agreements on divorce, children matters (parental rights or alimonies), liquidation of assets or pension funds must all be ratified by a judge.

The courts of the children’s habitual residence are in principle competent to settle disputes relating to children, given that Switzerland applies erga omnes the Hague Convention of 1996.

Proceedings can be initiated by either parent if there is a disagreement between them over custody, parental rights, or financial responsibility for the children. The judge has wide discretionary powers to decide about the children, always in their best interest. He or she is not limited by the parents’ conclusions.

Parental Responsibility

Parental responsibility means the comprehensive right to make all important decisions concerning the child in relation, for example, to education, religious upbringing, and medical interventions. Parental responsibility also includes the right to decide on the child’s place of residence.

Married Parents

Under the revised Law on the Effects of a Parent-Child Relationship, which entered into force on 1 July 2014, a court in Switzerland seized of a divorce petition will assign joint parental responsibility to both parents. Sole parental responsibility in favour of one parent is only exceptionally granted if this is necessary to protect the child’s wellbeing.

Unmarried Parents

If the parents are not married to each other, and the father recognises the child, joint parental responsibility can be established based on a joint declaration by the parents. In case of refusal of one parent, the other can request the Child Protection Authority (Autorité de protection de l'enfant) to intervene. Joint parental authority will be ordered, unless it is clearly and exceptionally contrary to the best interests of the child.

Custody

The judge will decide on the physical custody of a child in the event of the breakdown of a relationship or marriage.

Where there is disagreement between the parents, the court will ask the Youth Protection Service to issue a social report with recommendations.

The same principles are applied when the judge considers the question of awarding custody whether the parents are married or not.

The primary rule for awarding custody is the child’s welfare, and the parent’s interests are relegated to the background.

Among the essential criteria are:

• the personal relations between parents and child;
• the parents’ respective educational skills;
• the parents’ ability to care for the child and to encourage contact with the other parent;
• the age of the child and their sibling(s) or social circle; and
• the child’s expressed wish to be cared for by the other parent.

If alternating custody is requested, the judge must examine (independently of the parents’ agreement) whether alternating custody is possible and compatible with the child’s welfare.

Children are heard personally and in an appropriate manner by the judge or a third person appointed for that purpose (generally a representative of the Youth Protection Service). In principle, the hearing can take place from the age of six years. The opinion expressed by the child is generally taken into consideration from the age of eleven or twelve.

Children can ask the judge to appoint their own counsellor, who can submit petitions in the child’s interests.

If the judge concludes that alternating custody is not in the interests of the child, after awarding custody to one of the parents, the judge will determine the right of the other parent to maintain personal relations with the child.

Contact with children and the non-resident parent is granted in consideration of the specific circumstances of each individual case (in particular, the age and development of the child).

In extraordinary circumstances, a right of contact with the child may also be granted to other persons and to relatives, to the extent this serves the child’s best interests (Article 274a of the Civil Code).

Child Maintenance

Maintenance can be provided by caring for and raising the child, or by making monetary payments (Article 276.1 of the Civil Code). The parent with physical custody of the child can ask for financial support to cover the actual costs associated with raising the child (Article 285.1 of the Civil Code). Under Articles 276.2 and 285.2 of the Civil Code, this includes the costs of caring for and raising the child (contribution de prise en charge). This is designed to enable the child to continue being cared for by the parent who primarily took on this responsibility during the marriage or while the parents were living together. The costs are calculated by taking into consideration the essential needs of the caring parent, which are added to the effective costs of the child (TF 5A_329/2019, 5A_102/2019).

In addition, it is possible to claim for the extraordinary costs of the child, for example orthodontics, travel for linguistic education, and so on (Article 286.3 of the Civil Code).

Usually, child maintenance is due monthly. However, a capital payment as full and final settlement of the child’s maintenance entitlement can be considered if this is in the child’s best interests, and must be ratified by the competent authority (Article 288.1 of the Civil Code). While very uncommon in Switzerland, it is also possible to settle a transfer of property as child maintenance, which must also be ratified by a judge.

The above is equally valid for children within a marriage and those born out of wedlock.

Both parents are jointly responsible for supporting a child, irrespective of whether they are married, separated, or divorced. The parent who does not have physical custody of the child must pay for the child’s support (Article 276 of the Civil Code) if he or she has the resources.

When assessing the amount of the maintenance, the following must be considered:

• the needs of the child and the costs of caring for and raising them; and
• the parents’ financial situation (income, costs and sometimes wealth) and ability to pay.

(Article 285 of the Civil Code).

The Swiss law does not stipulate a method for calculating child support contributions. However, the case law of the Swiss Federal Supreme Court has recently established a uniform and binding method in Switzerland for child maintenance. The method is called the “concrete two-step method” (ATF 147 III 265).

The first step is to determine the resources and expenses of each member of the family. Expenses are first analysed in a limited way, with only very few expenses being considered (in particular, the minimum amount required to live according to Swiss law, housing rent, basic health insurance). Then, if the family’s financial resources allow it, a second calculation is made of the expenses of each member, adding certain items (taxes, telephone charges, supplementary insurance, training costs). If the family still has a surplus, this is shared between the members (ATF 147 III 265). The judge has a large discretionary power.

Furthermore, it is established that the child should partake in the parents’ standard of living. The court has found that the costs for caring for and raising the child can be included in the maintenance, even in cases of alternate custody.

The parents’ duty to pay child support lasts until the child’s majority (18 years old in Switzerland) but can continue beyond if the child has not completed their education (Article 277 of the Civil Code). However, there is no right for the child to be supported to complete an education abroad if an equivalent course exists in Switzerland.

A child can make a direct claim against their parents. If the child is a minor, they are represented by their legal representative, usually the parent who has the physical custody, or by a guardian (Article 308.2 of the Civil Code).

An agreement on alimonies for a minor child is only binding if ratified by a court.

A child over the age of majority can also make a direct claim against their parents for the payment of alimonies, provided they are pursuing their studies earnestly.

When the parents have different opinions on these issues, but both have the right to decide, one parent asks the judge to give him or her the right to decide alone. In this way, the judge restricts the authority of one parent by giving full decision-making power to the other on the issue in dispute.

Children can be heard by the judge or by a service designed by the judge. From the age of around 11 or 12, children are considered mature enough to express their opinion.

In situations where there is a concern about parental alienation, the judge has the discretion to order a family assessment conducted by one or two psychiatrists.

Finally, a child can always write directly to the judge if needed.

Mediation is widespread in Switzerland. By contrast, collaborative legal proceedings are relatively rare. Arbitration proceedings are not possible for disputes involving children.

Under Article 54.4 of the Civil Procedure Code, family law proceedings are not conducted in public. The ban on public hearings also applies to the media. However, many decisions are accessible on court websites in redacted form, although the family concerned should not be recognisable.