Divorce on joint request (Art. 111 CC)
If the spouses are in complete agreement about the divorce and its ancillary consequences, a lot of money and time can be saved. In this case, the two-year separation period does not apply and a petition for divorce can be filed immediately with the competent court on the basis of a joint request in accordance with Art. 111 of the Civil Code. The ancillary consequences to be settled include: parental care, custody of the children, child maintenance, allocation of the apartment/house, division of property rights, post-marital maintenance and occupational benefits.
It is possible to agree on all or only some of the ancillary consequences (Art. 112 CC). Even in the case of a partial agreement, the two-year separation period does not apply if the judge is convinced of the will of both parties to divorce.
The typical procedure for a divorce by mutual consent may be as follows:
1. both spouses jointly decide to divorce.
2. they draw up an amicable divorce agreement in which they jointly declare their will to divorce and regulate the ancillary consequences.
The joint petition for divorce including the signed divorce agreement is filed with the competent court (at the domicile of one of the parties). In addition, the necessary documents and evidence such as proof of income, rental agreements, tax documents, pension fund statements, etc. must be submitted.
After filing the petition for divorce, the parties are summoned to a court hearing. At the hearing, the court shall form an opinion as to whether the spouses have decided to divorce according to their free and uninfluenced will. If there are children, they may also be heard for the purpose of assessing the children’s interests. 5.
5. as a final step, the divorce convention is approved and elevated to a judgment.
6. the divorce decree is sent to the parties or their legal representatives by post.
Divorce by legal action
If the spouses disagree, divorce can be obtained by means of a divorce petition pursuant to Art. 114 of the Swiss Civil Code. The two-year period of separation is a prerequisite. If the continuation of the marriage is unreasonable for one spouse for serious reasons, an action for divorce may be filed before the expiry of the two-year separation period under Art. 115 CC.
Due to the complexity of the proceedings, it is advisable to consult a legal adviser for a divorce by means of an action. If a party is obviously unable to conduct the proceedings himself or herself, the court may order him or her to appoint a representative. If the party does not comply within the set time limit, the court shall appoint a representative (Art. 69 CC).
The procedure in a divorce action may be as follows. 1:
1. one party files an (unfounded) divorce petition with the competent court after the expiry of the two-year separation period. The two-year separation period must be proven by the plaintiff. 2.
2. the divorce court summons both spouses to a settlement hearing after receipt of the divorce petition and payment of an advance on court costs.
(3) If there is a ground for divorce, the court shall attempt to reach an amicable settlement of the ancillary consequences with the parties at the settlement hearing. If no agreement or only a partial agreement is reached and certain ancillary consequences remain in dispute, the judge assigns the plaintiff role and sets a deadline for a substantiated claim. 4.
This is followed by the (double) exchange of written pleadings (i.e. reasoned claim and defence). If necessary, the judge may order a second exchange of pleadings (i.e. replication and duplicate). 5.
After the exchange of written submissions has been completed, the court summons the parties to the main hearing. At this hearing, the parties are again given the opportunity to make their submissions and present their position. 6.
(6) The main hearing is followed by the deliberation and judgment phase. The judgment is sent to the parties or their legal representatives by post.
Divorce with a partial settlement (Art. 112 CC)
The procedure is also different in the case of a divorce petition with a partial settlement under Art. 112 CC.
(1) If agreement cannot be reached on all the ancillary consequences, the spouses may file a petition for divorce with a partial settlement with the competent court.
The parties are summoned to a settlement hearing. 3.
At this hearing, an attempt is made to reach an agreement on the disputed ancillary consequences under the direction of the court. 4.
(4) If the spouses are unable to reach agreement or if one or more of the ancillary consequences remain in dispute, the court shall allocate the roles of plaintiff and defendant and set a time limit for the plaintiff’s side to file a reasoned complaint on the points that remain in dispute.
(5) After the exchange of written submissions, the parties are summoned again to a main hearing (cf. procedure in divorce proceedings).
The judgment is served on the parties or their legal representatives by post.
It should be noted that not every procedure is the same. The court may also provide for different procedures depending on the issues that arise in the specific case.
Costs of a divorce
The costs of a divorce vary from canton to canton. Not only court costs are incurred, but also legal fees, depending on the case. If the divorce is a joint petition, the costs can total between CHF 2,500 and CHF 4,500.
However, if discrepancies arise, for example, regarding property rights or children, if one of the spouses lives abroad or if the court has to spend a considerable amount of time and effort to clarify all open questions, significantly higher costs must be expected. The court costs are also higher, whereby these are based on the amount in dispute and the complexity of the case.
Who pays the costs?
In an amicable divorce, each spouse usually pays half of the court costs and their own costs for a lawyer. However, a different way of paying the costs can be stipulated in the divorce agreement. In a divorce action, on the other hand, the lawyer’s fees and court costs are awarded to the parties in proportion to their loss.
If a party is demonstrably destitute and dependent on legal assistance, he or she has the option of submitting a request for free litigation and free legal assistance. If the application is approved, the costs are provisionally borne by the court cashier. If the applicant acquires assets within 10 years or if his or her financial situation improves, he or she is obliged to repay the amount.
Finally, it should be noted that the amount of the costs thus depends, among other things, on whether a joint petition for divorce or a unilateral petition for divorce is filed.
If you would like to draw up an amicable divorce agreement and need competent legal support in doing so, our lawyers will be happy to assist you on request.
If you have any questions regarding Divorce law, our lawyers will be happy to advise you.