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– August 11, 2021

Difference between separation and divorce – What needs to be settled?

The end of a marriage is usually a very emotional process. In the following, we show what regulation options are available when the joint household is dissolved.

Separation

If spouses separate, the dissolution of the joint household can be settled by means of an amicable separation agreement or by marital protection proceedings. Particularly the following points are addressed for the duration of the separation:

 

  • separation date
  • use and occupancy of the marital property or flat (incl. furniture/inventory)
  • if applicable, use and application of the vehicles
  • spousal support
  • custody and visitation rights of the children
  • child maintenance
  • separation of property, if any (can only be ordered by the court or notarised)

 

If the spouses agree on the consequences of the dissolution of the joint household, a separation agreement can be drawn up. In principle, this agreement does not require the court’s approval. However, if the spouses have joint minor children the provisions concerning the children’s affairs must be approved by the court. The agreement on spousal maintenance also requires court approval in principle. However, out-of-court agreements concerning maintenance are also binding if neither spouse has approached the court.

If, on the other hand, the spouses do not agree, one spouse can file a so-called application for matrimonial protection with the court at the domicile of one of the spouses. With this application, maintenance contributions can be claimed retroactively for one year.

 

Divorce

In the case of a divorce, court proceedings are mandatory, but if the spouses agree on all ancillary consequences of the divorce, an agreement may be submitted to the court for approval. If there is no agreement, a petition for divorce may be filed at the domicile of one of the spouses after the expiry of the two-year separation period or if the marriage is unreasonable. For those who wish to settle the consequences for this period (separation until the divorce becomes final), the above-mentioned options are available under the heading “Separation”. In the event of a divorce, the following points can or must be settled:

 

  • post-marital maintenance (incl. pension maintenance)
  • matrimonial property division (division of assets and liabilities, including real estate)
  • pension equalisation (division of 2nd pillar assets)
  • custody, care and visitation rights of the children
  • child maintenance

 

The aforementioned points are settled definitively exclusively at the time of divorce. For more information click here.

Whether in the case of separation or divorce, as specialised lawyers we support you in finding an amicable solution or represent you in a court case, should one be necessary. Contact us – we will be happy to advise you and discuss the possible course of action with you.

 

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