The judicial dissolution of marriage in Switzerland is a procedure strictly governed by federal statute, intended to dissolve the marital bond while settling all of its financial and family effects.
Proceedings open before the competent civil court, in principle at the domicile of one of the spouses, by filing a joint request or an action for divorce.
The two routes to divorce
Depending on the degree of agreement between the spouses when the steps are begun, the statute distinguishes two main ways of initiating the proceedings:
- Divorce by joint request: Where the spouses agree on the principle of the divorce, they file an agreement settling all the consequences of the divorce (comprehensive agreement) or leave it to the court to decide the points that remain in dispute (partial agreement); the court then summons the parties to a hearing in order to verify that their will is free and carefully considered and that the agreement can be approved.
- Divorce at the request of one spouse: If one spouse refuses to divorce, or if there is no joint request, a spouse may bring the matter before the court unilaterally, subject to the mandatory condition that the spouses have lived apart for at least two years, or, exceptionally, for compelling reasons that make continuation of the marriage intolerable.
Settlement of the ancillary effects and the judgment
The court is bound by the principle of the unity of the divorce judgment, which requires it to settle the family’s entire legal situation in one and the same decision:
- The financial and personal consequences: The court pronounces the divorce, rules on the position of minor children (parental responsibility, custody and maintenance), fixes any post-divorce maintenance contribution between the former spouses, liquidates the marital property regime and orders the equal division of the occupational pension assets (2nd pillar) accumulated during the marriage.
- Exceptional separation of issues: For good cause or by common agreement of the parties, the court may exceptionally divide its examination by giving a partial judgment on the principle of the divorce, while referring the liquidation of the marital property regime or of pension assets situated abroad to separate proceedings.
Divorce ends a status that cohabitation does not create. The use of AI in these files is set out in AI and family law.
Legal sources
Federal legislation:
- Art. 111 CC (cited by Federal Administrative Court judgment A-5923/2015; Federal Supreme Court judgment 5C.297/2001) (divorce by joint request with a comprehensive agreement)
- Art. 112 CC (divorce by joint request with a partial agreement)
- Art. 114 CC (divorce at the request of one spouse after two years of living apart)
- Art. 115 CC (cited by Federal Supreme Court judgment 5C.297/2001; Federal Supreme Court judgment 5A_203/2011) (divorce for breakdown of the marital bond for compelling reasons)
- Art. 274 CPC (ways of initiating divorce proceedings)
- Art. 283 CPC (principle of a single decision on the divorce and its effects, and reservations allowing separation of issues)
- Art. 287 CPC and Art. 288 CPC (hearing of the spouses, approval of the agreement and continuation of the proceedings)
- Art. 291 CPC and Art. 292 CPC (adversarial proceedings on an action for divorce, and change to a joint request)
Federal case law:
- BGE 144 III 298 (conditions for admitting a partial judgment limited to the principle of the divorce alone, by way of exception to the rule of a single decision)
- BGE 139 III 482 (statutory conversion of divorce proceedings into a joint petition where mutual intent to divorce is established)