When people married abroad but currently domiciled in Switzerland wish to divorce, the first question to ask is that of the competent authorities.
As a general rule, it should be remembered that in the event of domicile in Switzerland, it is the Swiss authorities who will be competent to deal with the divorce proceeding.
In the absence of a specific marriage contract, the Swiss authorities will apply Swiss law.
According to Swiss law, spouses can divorce in different hypotheses.
First, if the spouses agree on the divorce principle and all its ancillary effects, they can without waiting for any delay submit a divorce agreement and ask the Court to ratify within a judgment.
Then, it is possible that the spouses agree on the principle of a divorce, without however having reached an agreement on its effects. In this case, they can indicate that they want to divorce, leaving it to the judge to rule on the points of divergence.
Finally, when only one spouse wishes to divorce, he can do so if the separation lasted at least two years. Concretely, this means that when the spouses have lived apart for at least two years, it is no longer possible in Switzerland to oppose a divorce.
In divorce proceedings, the judge must rule on several points.
Obviously, when there are minor children and the parents do not agree on the custody regime, it is the judge who must decide. In Swiss law, the alternate custody regime is increasingly privileged. It should be noted that this system assumes that the parents are able to agree on issues affecting the children, which is unfortunately not always the case. The judge will also have to decide whether one parent must pay the other a contribution for the maintenance of the children.
It is up to the judge, in the event of disagreement between the parties, to liquidate the matrimonial property regime. This will be done according to the regime chosen by the parties, ifany. Failing this, Swiss law applies the acquired property regime, according to which the property acquired by the spouses during the marriage is divided equally at the time of the divorce, except for the own properties of each spouse, namely those acquired by a spouse before the marriage or by inheritance during the marriage.
The judge must then assess the question of a possible maintenance contribution due by one spouse to the other. Switzerland has been applying the clean break regime for several years, according to which divorcing spouses should in principle regain their financial independence. This principle suffers from numerous exceptions, in particular when the marriage lasted many years and there is a disparity in income between the spouses.
It often happens that one spouse wishes to divorce and that the other does not agree, which raises the question of the measures that can be taken during the two-year period of separation.
In Swiss law, when one wishes to separate, it is possible to file “protective measures for the marital union”. This is a request in which a spouse asks the judge to rule on the separated life, namely in particular the custody of the children, the attribution of the marital home or the maintenance contributions to be paid by a spouse to the other and to the children.
In principle, this is a quick procedure. Experience shows, however, that when the spouses do not agree, particularly on issues of child custody, the separation procedure can be relatively long and complicated, which is why it is essential to receive wise advice during such a process.
