KMU Magazin No. 1/2, January/February 2024 Family law terminology and its use
Legal jargon is often not used in the correct context or with the wrong meaning, which in turn leads to misunderstandings. This article sheds light on the most common family law terms and their actual meaning and clears up misconceptions. It should be noted that these terms and their content are limited to Swiss law.
There are several terms circulating around family law issues that are often used incorrectly or are even confused. The best example is probably the terms «parental responsibility» and «parental custody».
Parental responsibility
«Parental responsibility» is the right and duty of a parent to make decisions for the child where they are not yet able to do so themselves. Examples hereof are the choice of school, medical interventions (e.g. getting braces), the choice of religious education (up to the age of 16) or determining the child's place of residence. If the parents have joint parental responsibility, which is also the rule in the case of separated or divorced parents, the parents must make such decisions jointly. If the parents are unable to agree on a decision, mediation by a family counselling center is recommended. If the child's welfare is at risk due to the parents' disagreement, either parent can contact the child and adult protection authority.
Withdrawal of parental responsibility is an extremely serious encroachment on parental rights. The requirements for withdrawal are correspondingly high. Consequently, withdrawal is correctly regarded as the «ultima ratio» or last resort to safeguard the best interests of the child. However, even if a parent is deprived of parental responsibility, he or she is not released from the obligation to meet his or her parental maintenance obligations. Even without parental responsibility, a parent has the right to be informed about special events in the child's life and to be consulted before decisions are made that are important for the child's development.
Parental custody
«Parental custody» is an aspect of parental responsibility. It includes the right to live together with the child, to live with the child in a domestic community and to take care of the child's everyday needs. Everyday needs means what clothes the child wears, whether the child is given medicine for a cough or what time the child goes to bed. If the child lives entirely or predominantly with one parent, this is referred to as «sole custody».
Even if the child is under the sole custody of one parent, in the case of joint parental responsibility the parents still have to make joint decisions on non-everyday matters. Consequently, the concepts of parental custody and parental responsibility must be kept strictly separate.
Alternating custody
In contrast to the above-mentioned «sole custody», in the case of «alternating custody» the joint children are not mainly cared for by one parent, but rather the parents divide the care shares between them. A 50/50 split is not mandatory, but is desired by the legislator. The parents divide the care shares individually, usually in inverse proportion to their professional activities. But in spite of that, this care model requires, among other things, a minimum level of communication and cooperation on the part of both parents.
In addition, alternating custody only makes sense if both parents live near the child/children's school. In any case, the care arrangement should be in the best interests of the child, taking into account the child's expressed wishes. Incidentally, the latter always applies, regardless of which care arrangement is determined. Now that the issue of «parental care» and «parental custody» has been clarified, let us turn our attention to another mystery: measures for protection of the marital union.
Measures for protection of the marital union
The term «measures for protection of the marital union» can sometimes seem strange. It implies that measures are taken with the aim of protecting the marriage. In practice, however, in the case of measures for protection of the marital union, the marriage has usually already broken down to such an extent that it is no longer worth protecting. Measures for protection of the marital union rather regulate the separation of the spouses if a divorce is not yet an option - for whatever reason. The judge in this case regulates the following areas, among others:
- Allocation of the marital home to one spouse
- Determination of care arrangements for any children
- Award of any child maintenance
- Award of any spousal maintenance
- Ordering the separation of property
The above-mentioned measures are ordered as a precautionary measure for the period of separation and generally apply until the time of the divorce. On the occasion of the divorce, measures ordered during the period of separation are redefined as ancillary consequences of the divorce. Having said that, it cannot be denied that the precautionary ordered measures for protection of the marital union to a certain extent prejudge the ancillary consequences of the divorce.
The spouses are of course free to reach an amicable agreement within the framework of a joint agreement for the period of separation. Nevertheless, with regard to any child maintenance (see below), the spouses must have their agreement approved by the child and adult protection authority, unless it is determined by the court.
Child maintenance/alimony
Both parents owe the child maintenance. However, maintenance is not limited to the payment of monetary contributions, but also includes the provision of care and upbringing.
Both parents provide maintenance jointly, each to the best of their ability. If one parent provides maintenance through care and upbringing within the framework of sole custody (see section «Parental custody»), the other parent must contribute by making a financial contribution. These monthly maintenance contributions are known colloquially as «alimony».
These alimony payments are determined based on the parents' financial capacity, the financial needs of the family as a whole and depend on the amount of care provided by each parent. As the calculation is extremely complex, it is worth seeking legal advice.
Cohabitation
The term «cohabitation» refers to a marriage-like relationship without marriage. There is therefore no actual legal union. The cohabiting partners owe each other neither support nor any other marriage-like fidelity in the legal sense.
Both cohabiting partners complete their own tax return and, unlike married couples, each receive a 100% old-age and survivors’ pension when they reach retirement age (married couples receive a capped pension of 150% of the maximum pension).
In the event of death, there is no legal right of inheritance in favor of the surviving cohabiting partner. From a legal point of view, the concept of «cohabitation» is irrelevant in principle. Nevertheless, complex legal issues can arise from this marriage-like relationship. In this context, individual legal advice is recommended.
Conclusion
The colloquial use of family law terms has now become established. However, there is a discrepancy between the everyday language and the actual legal meaning.
Due to the importance of the topic, it is evident that misunderstandings should be avoided. For this reason, legal advice from a specialist is particularly important in family law matters that are already emotionally charged.
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