– March 12, 2021

Unification of the calculation method for maintenance payments

In recent decisions, the Federal Supreme Court has clarified various questions regarding the calculation of spousal and child maintenance. The Federal Supreme Court now lays down a binding calculation method from which deviation is only possible in justified exceptions. In addition, the Federal Supreme Court addresses the question of when spouses can reintegrate into the world of work after a separation or divorce and when a “life-shaping marriage” is to be assumed.

Maintenance calculation

Previously, different calculation methods were permitted. This led to major cantonal differences. In future, the amount of maintenance will be calculated throughout Switzerland using a so-called two-stage method with surplus distribution. In simple terms, this method leaves each party with the minimum subsistence level under debt collection law, which may be supplemented by the minimum subsistence level under family law. If a so-called surplus remains with the family, it is divided among the family members.

Reintegration into the labour market

Among other things, the Federal Supreme Court also abolished the “45 rule”. Previously, spouses could no longer be expected to take up gainful employment if they had not worked during the marriage and if they were 45 years old at the time of the divorce. According to the new regulation, reintegration into the labour market is reasonable regardless of age, provided there are no justified obstacles, such as childcare, in the way.

Life-shaping marriage

Until now, a marriage was considered “life-defining” if it lasted ten years. This tended to lead to permanent maintenance payments. According to new case law, however, an individual examination is now always required as to whether the marriage was life-defining or whether one spouse has given up his or her economic independence in favour of providing for the household and caring for the children and it is therefore no longer possible for him or her to continue in his or her former position. Even in the case of a life-shaping marriage, according to the new case law, post-marital maintenance is to be limited in time appropriately against the background of the concrete circumstances in the individual case.

To the press release of the Federal Supreme Court.