If you and/or your partner conclude that you no longer wish to continue your partnership, you will have to consider the following, depending on your circumstances:
The agreements you make on separation are valid for the duration of time you are separated. A separation is usually indefinite. It can, however, be reversed at any time. Married couples, or those in civil partnerships, who live apart are still seen as a couple in the eyes of the law and, thus, are still obliged to support one another. Joint custody of any children remains unchanged. The property settlement only occurs at the time of the divorce. Mutual inheritance rights and social security entitlements (e.g., to pension fund assets) remain unchanged in the event of separation. However, married couples and those in civil partnerships living apart are taxed separately.
Consensual out-of-court and court-approved separation agreement
As long as you agree on the circumstances of separation, you do not necessarily have to go to court. You are free to draw up and sign a written separation agreement or, for unmarried couples, a maintenance agreement. Verbal agreements are also possible; however, we strongly recommend you create a written document. In most cases, it also makes sense to have the agreement approved by a court.
In some situations, it is necessary to have a separation agreement approved by the court. For example, as a separated person you can only apply for social assistance or a maintenance advance if you can present a court-approved separation agreement. If there are disagreements in the future, the court-approved separation agreement will give you a legally binding document with which you can enforce claims.
Maintenance agreement (between unmarried parents)
Unmarried parents can draw up a maintenance agreement which regulates the financial support and care of the children in the event of separation. For this to become effective, it must be approved by the competent child protection authority. You are not obliged to draw up a maintenance agreement, however, it is strongly recommended.
Procedure in case of dispute
According to Article 175, SCC, a spouse is entitled to suspend the joint household for as long as their personality rights, financial security or the welfare of the family are seriously endangered by living together. If no agreement can be reached on the consequences of a separation, it is possible to file an application for marital protection with the court or, in the case of unmarried couples, an application with the competent mediation authority. In response to an application for matrimonial protection, the court can authorise the dissolution of the joint household and regulate the circumstances of separation.
You can have yourself represented by a lawyer. If you are not able to pay for the costs of the lawyer and the court yourself, you can apply for free legal aid.
Divorce is the final dissolution of a marriage. In a divorce, the couple separates in accordance with marital property law, i.e., the assets are distributed according to the marital property regime. Furthermore, decisions are made on maintenance payments (for children and spouse). Custody and visitation rights are determined for joint children. Once the court has approved a divorce agreement, it isn’t easy to have it amended retroactively. A divorce can be filed jointly or in the form of a divorce suit.
Divorce on joint petition
If both spouses agree to a divorce, they can file a joint petition for divorce with the competent court. In this case, both spouses can file a complete, or partial, agreement regarding the circumstances of the divorce. It is also possible to request that all consequences of the divorce be determined by the court. The following points are to be settled:
Divorce by lawsuit
If one spouse does not want to get divorced, the spouse who does want to get divorced has the option of filing a petition for divorce with a court. This is possible after the expiry of the two-year period of separation.
According to Article 59 of the Federal Act on Private International Law, the Swiss court at the place of residence of the defendant or, if the claimant has been in Switzerland for one year or if they are a Swiss citizen, the Swiss court at the claimant’s place of residence is the competent court for divorce or separation.
Important for binational couples
If the divorce takes place in Switzerland, it is not automatically registered in your country of origin. You must have the divorce recognised or registered in your country. To do this, contact the competent foreign representation in Switzerland.
Financing two households is more expensive than one. Therefore, after separation your income may no longer be sufficient to cover both household budgets. In this case, it is possible to apply for social assistance at your place of residence.
Child maintenance is an important financial safeguard for the child. In principle, the person paying the maintenance’s income and the needs of the child are decisive when calculating the total amount. Whether the parents are married or not is irrelevant. Maintenance must be paid until the child legally becomes an adult or until they have completed their education. Child maintenance is divided into cash maintenance and care maintenance.
If the maintenance isn’t paid, you have the right to act yourself and to initiate debt collection. By applying for maintenance assistance, these steps are assumed by the relevant authority in your canton. This could be debt collection assistance or an advance on the maintenance.
If maintenance payments are due for joint children and one parent lives abroad, there is the possibility of international maintenance collection, depending on whether the state in question has signed the relevant international agreements.
Separated spouses are still obliged to support each other. Thus, following separation, they must agree upon fair division of their family income.
Following divorce, the spouses must generally support themselves. Therefore, if possible, both spouses should be employed in order to be economically independent. However, this is not always possible. For example, one spouse was not employed during the marriage so they could do the work at home: childcare and housekeeping. Or their finding a job is unlikely or unreasonable. This might be the case if a person has no work experience or vocational training in Switzerland, is of advanced age or in poor health. In such situations, it is possible for the court to decide on an appropriate level of spousal maintenance. This depends on the needs of the person requiring support and the means of the person liable to pay maintenance. The duration of the marriage and the age of the children are also considered.
Distribution of assets in the event of divorce
The applicable marital property regime governs the distribution of assets between spouses in the event of divorce. The distribution of assets changes depending on whether the spouses are subject to the marital property regime or whether separation of property or community of property has been contractually agreed. In the event of divorce, a pension settlement is also made between the spouses.
Unmarried couples are not entitled to maintenance or the distribution of assets. However, they are entitled to maintenance payments for joint children.
A civil partnership may be dissolved at the joint request of the parties or by unilateral action.
If you both wish to dissolve the civil partnership, you must submit a joint petition signed by both individuals. You must also agree on how you will deal with the consequences of the separation. Among other things, this involves issues such as the following:
If you cannot come to an agreement, or you can’t agree on all the issues, you can file a joint petition all the same and ask the court to decide on the outstanding issues. After the couple has submitted the necessary documents, the court holds a hearing and decides on how to proceed.
Legal action for dissolution
The civil partnership can also be dissolved against the will of one of the partners. If the couple has been living separately for a year, the person who wants to dissolve the partnership can file an action for dissolution. The court will then invite both persons to a hearing.
Effects of the dissolution of the civil partnership
After the dissolution of the partnership, your civil status is ‘dissolved partnership’.
In principle, separation of property applies, unless you and your partner have contractually agreed otherwise. Each person keeps their own belongings. Joint assets are either divided or allocated to one of the two persons in exchange for compensation.
After the dissolution of the civil partnership, each person is responsible for their own finances. However, the court may order maintenance payments if a person, in agreement with their partner, has reduced or given up their job or if they are experience financial hardship due to the dissolution of the partnership. The right to maintenance exists until the person receiving the maintenance payments returns to work and can earn a reasonable income.
Both persons are taxed individually following the dissolution of the partnership.
OASI and occupational pension scheme
Both partners receive half of the old-age and survivors' insurance (OASI) and pension fund assets acquired during the partnership.
If one partner has children, the court can decide whether the other person may have personal contact with the children (this is applied very cautiously).
With the dissolution of the partnership, the right of inheritance between the two persons no longer exists.
Depending on their nationality and residence title in Switzerland, separation or the dissolution of the joint household might have consequences under migration law for the foreign partner. If the person has obtained a residence permit in Switzerland by means of family reunification under Articles 42 and 43, FNIA, the couple cohabiting is a condition for the validity of this permit (apart from EU/EFTA citizens, see below). For those affected, residency in Switzerland can become a problem in the event of separation.
According to Article 50, FNIA, the spouse's and children's entitlement to the granting and extension of a residence permit after the dissolution of the marriage or family relationship remains intact if:
Thus, if the marriage or civil partnership lasted at least three years and the foreign individual has successfully been integrated into Swiss society, the residence permit may be extended without cohabitation. However, if the person in question has only been married for a short time and/or is dependent on welfare or does not have the required language level, they may have to leave Switzerland following the separation.
Important personal reasons can also lead to an extension of the residence permit. For example, if you have experienced domestic violence during your marriage, if you cannot reasonably be expected to return to your home country, or if you have children with whom you are in close contact.
EU/EFTA citizens and third-country nationals who have a permanent residence permit in an EU/EFTA state are not required to cohabit with their partner in order to obtain the right of residence. However, if it is clear to both partners that they no longer wish to continue their relationship or in the case of divorce, the non-Swiss spouse runs the risk of losing their right of residence. However, they can claim their own right of residence in Switzerland with proof of a job or sufficient assets to finance life in the country.
When parents separate, children are often unsettled by the situation within their family. But even if the parents go their separate ways, both are still responsible for the child, or children. For the children to be able to re-orientate themselves, they need a lot of attention and security. But the parents are also faced with challenges. They must work out childcare, finances, and how they communicate with each other. This can lead to stress, which puts a strain on everyday life. Ideally, separated parents should treat each other respectfully – especially in the presence of the children. It is important that children do not become pawns in a conflict between parents.
Important questions to consider and discuss as parents:
Both divorced parents are entitled to custody. However, if the child’s welfare is endangered, sole custody can be awarded to only one parent (sole custody). The requirements for this are strict. Joint custody can be exercised over large geographical distances. Parental custody covers decisions on the upbringing, education and legal representation of the child, as well as the management of their assets. Custody also includes the right to determine the child’s place of residence.
Important for binational couples
Changing a child’s place of residence can only take place with the consent of both parents. If you leave the country with the children without the consent of the other parent this constitutes child abduction and you will be prosecuted.
In this context, guardianship covers the daily care and upbringing of the child. The parent with whom the children live for the majority of the time is said to be their guardian. If the children have a sole guardian, childcare hours and visitation arrangements are agreed upon according to the wishes of the parents and in accordance with the best interests of the child. Children can either live solely with one parent or alternate the parent with whom they live. Alternating guardians is when parents share the care of the children at least in the ratio of 25-30% to 70-75%. Alternating guardians must be compatible with the best interests of the child; in particular, the parents must be able to communicate, and the places of residence must not be too far apart. The division must be clearly regulated between the parents.
Both parents are important
Children are allowed to like, and to develop an independent relationship with, both parents, even if the parents live separately. This is especially important for children with binational parents. Otherwise, the child may lose part of its cultural identity. For the child to develop a healthy identity, it is important that the child knows, and has access to, both cultures. It is also important that the child can maintain contact with both parents’ families.
Deciding whether to separate can be very difficult. Or perhaps, once you’ve made the decision, you would like support in working out a separation agreement. Or you have tried unsuccessfully to reach an agreement with your ex-partner. In such situations, there are various support services available.
Individual or couple counselling can give you clarity about the consequences of separation or divorce and support you in your decision making. There are therapy services such as marriage and family counselling, as well as legal counselling centres that can answer your questions.
If you have decided to separate or get a divorce, it is possible for you and your ex-partner to settle the consequences of the separation/divorce/dissolution of the partnership with mediation. The condition for mediation is that both partners agree to the separation or divorce and want to resolve the consequences amicably.
Ideally, you will be accompanied by mediators trained to give both legal and psychological support. They will also help you to draw up a separation, or divorce, agreement.
There are situations in which it makes sense to hire a lawyer. This might be the case in complex situations, or when the spouses cannot come to any agreement whatsoever.