Swiss Laws about Divorce
Jeremy D. Morley
Switzerland: Divorce Jurisdiction
The Swiss courts have divorce jurisdiction if the plaintiff is domiciled (which essentially means permanently resident) in Switzerland, or if the defendant is domiciled in Switzerland, or if the plaintiff is a Swiss national residing in Switzerland. Article 51, Swiss Statute on Private International Law.
In addition, the Swiss courts will have divorce jurisdiction if only one spouse is a Swiss national if "the action cannot be brought at the domicile of either spouse or cannot reasonably be required to be brought there." (Article 60, Swiss Statute on Private International Law).
Switzerland: Law Applicable to Matrimonial Property and Divorce
Once a Swiss court has divorce jurisdiction it will also have jurisdiction to handle all matters concerning the effect of the marriage on the parties' property and on the division of matrimonial property. (Article 51, Swiss Statute on Private International Law).
Switzerland authorizes the spouses to select the law that will govern their matrimonial property relations. (Article 52, Swiss Statute on Private International Law). Such choice may be made in writing or "result with certainty from the provisions of a marital property agreement." (Article 53). A choice of law may be made or amended at any time. A choice of law made after the marriage celebration has retroactive effect as of the date of the marriage, unless otherwise agreed. The chosen law remains applicable as long as the spouses have not amended or revoked such choice. (Article 53, Swiss Statute on Private International Law).
If the spouses do not make a proper choice of law, their matrimonial property relations will be governed by the law of the country in which they are both domiciled or, in the absence of a shared current domicile of both spouses in the same country, by the law of the last country in which they were both domiciled at the same time. If they never shared a common domicile their common national law will apply and if they have no common nationality then Swiss law will apply. (Article 54, Swiss Statute on Private International Law).
If the spouses' domicile is transferred from one state to another, the law of the new domicile applies and has retroactive effect as of the day of the marriage. Spouses may exclude retroactivity by so agreeing in writing. A change of domicile has no effect on the applicable law if the spouses have agreed in writing to continue the application of the former law or if they are bound by a marital property agreement. (Article 55, Swiss Statute on Private International Law)
Switzerland: Prenuptial and Post-Nuptial Agreements
Prenuptial and postnuptial agreements are binding under
Swiss law provided they fulfill certain statutory requirements. They must be
entered into by means of a "notarial deed." (Art. 184, Swiss Civil Code). The
notary has a duty to ascertain that the contract is based on the free will of
the parties and is in accordance with the law. The notary also has to explain
to the parties their current legal status and the changes that the marital
contract will provide, ensure that the parties understand the meaning of the
contract and ensure that the contractual provisions are in accordance with the
wishes of the parties. However, if the notary does not fulfill such
obligations, the contract remains valid, although the notary may be sued for
damages. The registration of marital agreements was abolished in 1988.
Prenuptial agreements enter into force upon the solemnization of the marriage (Art. 182,Swiss Civil Code). Spouses may enter into a marital agreement or modify or annul a prenuptial agreement at any time during their marriage.
Full disclosure of the spouses' assets and debts is not necessary. However, the general rules of contract law apply, so that a marriage contract might be invalidated by reason of fundamental mistake, fraudulent misrepresentation or duress (Arts 23 et seq. and 28 et seq. Swiss Code of Obligations), or the general rule prohibiting an abuse of a right (Art. 2 para. 2 Swiss Civil Code) may apply.
A marital contract containing provisions regarding the matrimonial property regime, and that does not provide for the other effects of a divorce, qualifies as a marital contract, and is not subject to judicial review for fairness. On the other hand, an agreement intending to lead to a divorce is dealt with differently from a marriage contract and is subject to judicial control (Art. 140, Swiss Civil Code).
The spouses may only choose, change or modify their property regime within the boundaries of the Swiss law, Art. 182 (2), Swiss Civil Code. They may choose between the statutory property regimes. Whichever regime they choose may only be modified in specifically authorized ways and to a specifically authorized extent. The spouses cannot create their own regime. However, they may regulate certain issues regarding property law by a simple written contract in writing, but such an agreement does not qualify as a marriage contract.
Thus, under the property regime of participation in acquisitions, the spouses may deviate from the rules on the participation in the increased value of an asset in the case where one spouse has invested in the other's assets, Art. 206 (3), Swiss Civil Code.
Under participation in acquisitions, the spouses may designate business assets that would otherwise belong to the marital property as separate property, Art. 199 para. 1 Swiss Civil Code; they may also assign revenue generated from separate property to the separate property (Art. 199 (2) Swiss Civil Code).
Under community of property, the spouses may modify the assets that belong to the common property (Art. 223 Swiss Civil Code).
Switzerland: Division of Assets on Divorce
If the parties have selected a marital regime in a manner that is effective under Swiss law, that regime will govern the parties' asset relationship.
If the parties have selected a foreign law to govern their relationship in a manner that is effective under Swiss law, that law will govern the parties' asset relationship.
If there has been no such selection of a marital regime or a foreign law, the default Swiss property regime of " participation aux acquêts" (shared acquired property) will apply. Under that regime, the assets that each spouse owned before the marriage or received through gift or inheritance after the marriage are not shared between the spouses. However, the assets that either or both of them acquire during the marriage are required to be shared. (Arts. 196-220, Swiss Civil Code).
Switzerland: Recognition of Foreign Divorces
Foreign decrees of divorce or separation are required to be recognized in Switzerland if they are rendered in the state of domicile or habitual residence, or in the national state, of either spouse, or if they are recognized in one of those states. However, a decree that was rendered in a state of which neither spouse or only the plaintiff spouse is a national shall be recognized in Switzerland only if :
a. at the time of filing the action, at least one of the spouses was domiciled or had his or her habitual residence in that state and the defendant spouse was not domiciled in Switzerland; or
b. the defendant spouse submitted to the jurisdiction of the foreign court without reservation; or
c. the defendant spouse expressly consented to recognition of the decree in Switzerland.
(Article 65, Swiss Statute on Private International Law).
Foreign decisions relating to marital property relations must be recognized in Switzerland if:
a. they were rendered, or are recognized, in the state of domicile of the defendant spouse; or
b. they were rendered, or are recognized, in the state of domicile of the plaintiff spouse, provided that the defendant spouse was not domiciled in Switzerland; or
c. they were rendered, or are recognized, in the state whose law applies to the marital property relations pursuant to this Act; or
d. to the extent that they relate to real property, if they were rendered, or are recognized, in the state in which such real property is located. (Article 58, Swiss Statute on Private International Law).