KMU Magazin No. 3, March 2023 Three Divorce Myths put to the Test
Many myths and prejudices surround the institution of divorce. Some of them may be true, others, however, do not get beyond the status of myth. This article dispels three common separation and divorce myths.
"If a spouse refuses, you can't get a divorce"
If the spouses agree, they can file a joint petition for divorce with the competent court at any time. In many cases, however, divorce is associated with emotions and disputes. Therefore, one spouse may be uncooperative and refuse to cooperate in any way in connection with a divorce. The question is whether a divorce is still possible in such a case.
According to Art. 114 of the Swiss Civil Code (ZGB), a spouse may demand a divorce without the cooperation of the other spouse if the spouses have lived separately for at least two years at the time of filing the petition for divorce. Before the expiry of the two-year period, a spouse may request a divorce without the other spouse's consent if he or she cannot reasonably be expected to continue the marriage for serious reasons that are not imputable to him or her (Art. 115 of the Civil Code). However, such grounds only exist in the rarest of cases, which is why this divorce option is of practically no significance; it will therefore not be discussed further.
Back to living apart for two years. A spouse can therefore only refuse a divorce for two years from the date of living apart. In principle, the spouses live separately when they no longer live in the same household, i.e. when at least one spouse has moved out of the marital home. If the spouses already disagree on living apart, either spouse may petition the court for marital protection measures.
The refusal of one spouse with regard to divorce has a direct impact on the divorce consequences: The entitlements from the occupational pension plan (2nd pillar; pension fund assets) accumulated during the marriage are taken into account up to and with the initiation of the divorce proceedings. With the refusal of one spouse to initiate divorce proceedings, the other spouse is thus forced to wait the period of two years from the date of separation until he or she can initiate divorce proceedings on his or her own. Consequently, the occupational pension rights accumulated during these two years will also be taken into account on the occasion of the divorce. The spouse who pays lower contributions or no contributions at all to the occupational benefit scheme regularly benefits from delaying the divorce.
For more information on the division of occupational pension assets under divorce law, see our article "Divorce law treatment of pension assets" in "KMU-Magazin" No. 10, October 2021: "Treatment of pension assets under divorce law" .
The divorce myth "If one spouse refuses, you cannot get a divorce" is therefore only partially true. A spouse's refusal to initiate divorce proceedings is only possible for two years after the date of separation. After that, either spouse may file a divorce petition with the competent court on his or her own.
"The custody of the children is always assigned to the mother"
"Mater semper certa est" (lat. "the mother is always certain"). This legal principle states that the mother of the child can always be determined with certainty, i.e. is the one who gave birth to the child. The law thus establishes the legal relationship between mother and child at birth. This already implies that the relationship between mot her and child is stronger than that with the father. The myth is also fueled by the classic division of roles between wife and husband lived in past decades, in which the wife was at home with the children. But does the assertion mentioned at the beginning actually correspond to the truth?
In connection with marriage protection or divorce proceedings, the court also regulates the children's affairs. In particular, the court regulates the allocation of custody and any visitation rights. If the court assigns sole custody to one of the spouses, the question arises as to the criteria according to which the assignment is made. The highest maxim in deciding on children's matters is always the best interests of the child. Whenever possible, the child should be able to maintain its familiar environment (friends / school / home, etc.) and not be torn out of existing structures.
If a classic division of roles was lived during the marriage, in which one spouse took care of the children and the other generated the earned income, sole custody is therefore assigned in most cases to the spouse who already took care of the children during the marriage. However, this is the case regardless of whether it is the wife or the husband who took care of the children.
However, the model now preferred by the legislator is the so-called "alternating custody". With the revision of the CC as of January 1, 2017, legislation created the legal obligation for judges to examine the implementation of this care model if one parent requests it. The model involves the care and upbringing of the child by both parents in more or less equal shares.
However, the implementation often causes difficulties. In particular, the coordination of childcare and employment as well as faulty or non-existent communication between the parents offer plenty of potential for conflict. Even in the case of alternating custody, a presumed solution must always be examined in light of the best interests of the child.
It is therefore not correct that children are always placed in the care of the mother. The main criterion for the allocation and arrangement of care is always the best interests of the child. Which model of care is most suitable must be determined in each individual case on the basis of the specific circumstances.
"Divorce literally costs half a fortune"
Another myth also holds up valiantly: On the one hand, anyone who wants to get divorced has to pay the other spouse half his or her assets according to the myth. On the other hand, there are high costs for lawyers and courts, which additionally burden the account. This myth is to be examined below.
During a divorce, the property settlement between the spouses is carried out. Classically, the spouses live under the matrimonial property regime of the "Errungenschaftsbeteiligung" – acquired property community. In this case, the assets are divided into four different "pots" depending on their origin. For both spouses, there is one pot of "own property" and one pot of "acquired property".
Personal property includes all assets that are exclusively for the personal use of one spouse - such as clothes, jewelry, etc. - as well as all assets that one spouse brought into the marriage or that later accrued to him or her free of charge through inheritance or otherwise, as well as replacement acquisitions for personal property. The pot of acquired property includes, among other things, the income from work - i.e. the salary saved during the marriage -, the income from personal property and any replacement acquisitions for acquired property.
In the event of dissolution of the marriage, each spouse is entitled to half of the net assets held in the two "acquisition" pots at the time of dissolution. The basic idea behind this is therefore that all work earnings accumulated during the marriage are divided equally between the spouses, regardless of who earned the earnings. The assets that each spouse already owned at the time of the marriage are not divided equally, nor are all assets from inheritances or other gratuitous donations, i.e. the marital property. It is therefore not correct that all assets are divided in half during the divorce.
As far as court and attorney fees are concerned, the writers cannot give a general answer. Divorce proceedings can - especially if the parties disagree - trigger high court and attorney fees. The court proceedings can drag on for several years which entails corresponding costs for courts and lawyers.
However, if the parties, with the help of a lawyer, draw up a joint petition for divorce with the settlement of the divorce consequences and submit it to the court, the court and lawyer's fees will be limited. In any case, it is advisable to seek legal advice in advance, whether as a couple seeking divorce together or as a spouse alone, so as to obtain information about the legal situation.
In summary, it can be stated that not all divorce myths correspond to the truth. Nevertheless, there is always a spark of truth in every myth.
In order to keep an overview in a specific case and not to fall prey to false rumors about matrimonial protection and divorce proceedings, we therefore recommend that you seek legal advice in advance in order to avoid any unpleasant surprises in court.
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