Sources of family law
In Switzerland, family law is primarily governed by the provisions contained in the second paragraph (articles 90-456) of the Swiss Civil Code, with implementing the ordinances. This part consists of three divisions: marriage law (articles 90-251), family relations (articles 252-348) and guardianship (articles 360-455). The relevant provisions of the marriage law section are divided into marriage (articles 90-110), divorce (articles 111-149), general consequences of marriage (articles 159-179) and matrimonial property law (articles 181-251). The provisions relating to children are mainly found in the second division of the family law part, under the heading family relations.
A number of the original provisions of the family legislation have undergone substantial revision in recent years. With the Federal Laws of 30 June 1972 and 25 June 1976 the sections on adoption and parent-child relationships were revised. By the Law of 5 October 1984 the marriage law sections on the effects of marriage and matrimonial property were updated. More recently, by the Law of 26 June 1998, the divorce law section was also revised.
Relevant legislation in family law matters outside the Civil Code includes the Federal Law on the Acquisition and Loss of Swiss Nationality, the Law of Seizure and Bankruptcy and the Federal Law on Jurisdiction. International family law matters are governed by the Swiss Private International Law Statute of 18 December 1987 as well as by various bilateral and multilateral treaties signed and ratified by Switzerland.
The legislative power to regulate the law of practice and procedure has been left to the Swiss cantons, each of which has its own Code(s) of Civil Procedure and Court Organisation. Some degree of uniformity among the various cantonal procedure rules has, however, been achieved by the stipulation of procedural principles in the Civil Code, particularly in its divorce law section, and a general similarity among the cantonal codes. Further, the law regarding the relevant jurisdiction and forum has been unified by a Federal Law on Jurisdiction (‘Gerichtsstandsgesetz’) of 24 March 2000, in force since 1 January 2001.
The application of cantonal as well as federal law falls within the jurisdiction of cantonal judicial authorities, which are organised by cantonal legislation. However, the court of competent jurisdiction is now fixed by a Federal Law on Jurisdiction in force since 1 January 2001. Despite some diversity in legislation, judicial organisation in the cantons is based upon similar principles and in accordance with a similar structure. In civil matters, there are generally two levels of courts: first instance or district courts (‘tribunaux de premiere instance’ or ‘de district’; ‘Bezirks-’ or ‘Amtsgerichte’) at one level; cantonal courts, superior courts, or courts of appeal (‘tribunaux cantonaux’, ‘tribunaux superieurs’ or ‘cour d’appel’, ‘Kantons-’ or ‘Obergerichte’) at the other. At the federal level, there is one court, the Federal Court (‘Tribunal federal’; ‘Bundesgericht’) in Lausanne, which acts as an appellate court in civil and other matters, to ensure that federal law is applied uniformly and in accordance with constitutional principles.
There is no family court in Switzerland, and cases in family law matters are generally adjudicated by judges dealing with civil law matters in general.
Adjudication of disputes
In Switzerland, the adjudication of family disputes takes place within a primarily adversary system. However, some family law proceedings still show traces of an inquisitorial system, such as, for example, the procedure for establishing a parent-child relationship, disavowal proceedings and proceedings concerning parental responsibility and access. Disputes may resolved by agreements in divorce proceedings. As of 1 January 2000, the parties may also apply for divorce jointly. If the parties submit joint petitions regarding their children, the court will, after separate and joint hearings with the spouses, declare the divorce and ratify the agreement. Prior to ratifying the agreement, the court must have first verified that the agreement concerning ancillary relief is based on the free will of the parties and in accordance with the law. Party agreements concerning ancillary relief matters must generally be approved by the court to be valid.
There is no distinction between different groups of attorneys, such as barristers and solicitors in Switzerland. Any practicing attorney who has been admitted to the court in one canton can ask to be admitted to the list of lawyers and is then allowed to practice law in any part of Switzerland. He or she may appear in a family law case before the relevant court of any canton. While parties in family law matters are required to appear personally in court, they are not generally required to be legally represented.
Each canton has its own lawyers’ association. Generally there is only one association, as associations for specialised legal areas (such as family law) are not known in Switzerland.
Legal aid is received by parties to proceedings upon application to the appropriate court. There is no central body for legal aid. Instead, the court before which a claim is brought must determine whether to grant legal aid.
In order to be considered for legal aid, the parties must show an income below certain stipulated level as well as a reasonable chance of success in their suit. With the dispensation from court costs (‘unentgeltliche Prozessfuhrung’), legal aid includes representation by an assigned attorney (‘unentgeltliche Rechtsvertretung’), whenever necessary. A request for legal aid can be made to the court hearing the case at any stage of the proceedings.
Conditions for foreign domiciled Legal aid applicant are stipulated in the Hague Convention on Civil Procedure. According to the Swiss Constitution of 18 December 1998, every person who is not disposed of the necessary means to conduct legal proceedings has the right to be dispensed from paying court costs, provided that the case has a reasonable chance of success. If the legal representation by an assigned attorney is necessary, the Constitution provides the right to receive such legal aid as may be necessary. Pursuant to article 25 of the Hague Convention on the Civil Aspects of International Child Abduction of 1980, legal aid is also available in child abduction cases. Under this convention a right to receive legal aid is granted to foreign nationals and persons residing outside Switzerland on the same conditions, as it is granted to persons with their habitual residence in Switzerland.
The definition of ‘civil domicile’ under Swiss law is governed by the articles 23 to 26 of the Civil Code, which may differ from the definition of domicile of fiscal or administrative purposes. Civil domicile is determined by the residence of a party in one place and his or her intention of being established there. The intention is confirmed or implied by the facts, thus giving it an objective character. Domicile is characterized as the place where a person has ‘the centre of his life and his personal interests.’
A person has domicile of a place where he or she stays with the intent of remaining there permanently, demonstrating this in an objective and recognisable fashion.
A child’s domicile is that of his or her parents. If the parents are separated then the domicile of the child will be of the parent under whose care that child is.
It is presumed by the law that every person has one domicile. After a change of residence within Switzerland, a person keeps his or her previous domicile until a new domicile is established. When a person gives up a domicile abroad without creating a new one in Switzerland, his or her habitual residence is considered to be a domicile.
For international matters, the definition of domicile is contained in article 20 of the Private International Law Statute which follows, word-for-word, the provisions of Civil Code, implying that the interpretation developed under the Civil Code applies in international cases. However, there are some exceptions. Under the Civil Code, persons under guardianship, as well as children, are deemed to be domiciled wherever the guardian or parent(s) with responsibility is/are domiciled. Further, a domiciled established for a specific reason, such as, for example, a place of study, does not establish a legal domicile. Such constitutions of Civil Code cannot be reproduced in the Private International Law Statute.
THE CREATION OF A VALID MARRIAGE
A valid marriage requires that the parties have capacity to marry and that they comply with specified legal formalities. Failure to meet these requirements will result in the marriage being non-existent or voidable.
Capacity to marry
In order to contract a valid marriage the parties must:
(i) not be within the prohibited degrees of relationship. Marriage between certain persons related by blood or marriage is forbidden. Marriage prohibited between relatives related to each other by descent or between persons who are the issue of the same parent(s), as well as between stepparents and stepchildren. These prohibitions also apply to persons related through adoption. Adoption, however, does not cancel out the impediment to marriage between the adoptive child (and his or her descendents) and his or her family of origin.
(ii) be over the age of 18. Marriage by persons under this minimum age is not permitted. However, if the person marrying has not attained this minimum age for entering into marriage, the marriage is still considered valid, provided the person is of sound mind and mentally capable of understanding the significance of marriage. Those under guardianship require the consent of their guardian. Refusal to consent can be taken to the Swiss Federal Court.
(iii) be of sound mind. In order to enter marriage, the person has to be of sound mind and mentally capable of understanding the significance of marriage. The parties are required to have a certain degree of maturity and to possess a minimum degree of misunderstanding of the nature of marriage.
(iv) not be already married. A party to a marriage must not be already married, and must, in the case of a previous marriage, provide the necessary evidence that this marriage has been dissolved (i.e., declared void or dissolved by death or divorce). The existence of a still valid previous marriage makes the second marriage void. The proceedings to void the marriage may be instituted either by the competent authority or by any other interested party.
(v) be respectively male and female. While the law does not explicitly state so, it has been accepted that marriage can only be contracted by partners of the opposite sex. A union created contrary to this principle would be considered a non-existent marriage (matrimonium non existens). If a person has changed his or her sex, this change will be annotated in the civil registry, and the person will henceforth be considered of different sex with the possibility of marrying a person of the opposite sex.
In order for a legal marriage to be contracted, certain legal formalities concerning the preliminaries and solemnisation of the marriage have to be complied with. The preliminaries of marriage include that the parties give notice of the marriage to the local registrar of civil status at either the bridegroom’s or bride’s place of domicile, which will then be responsible for the preliminary proceedings of the marriage. Necessary documents must be attached with the applications (i.e., personal information on the parties, and where the circumstances require it, written consent of the guardian, certificates of death or declaration of nullity or divorce). Parties are required to declare before the registrar of civil status that they have fulfilled the legal requirements to enter marriage. The civil registrar examines the application, determines whether the requirements to enter marriage are fulfilled and confirms the identity of the parties.
The solemnisation of marriage takes the form of a mandatory civil marriage, before a civil registrar in the presence of two witnesses. Presence of both parties that is the prospective spouses is necessary to declare their intention to marry each other. That is considered constitutive of the existence of the marriage. Failure to meet these requirements (i.e., solemnisation before a registrar and unconditional declaration by the parties) has the consequence that no marriage will be deemed to exist (matrimonium non existens). As a result, any interested party may ask, at any time, for a judicial declaration stating that the two persons concerned have never been married to each other.
Swiss authorities consider themselves internationally competent to conclude a marriage if either the bride or groom is domiciled in, or is a citizen of, Switzerland. The applicable law for marriages in Switzerland is Swiss law or, alternatively, if the parties are non-Swiss, the law of one of their countries of citizenship. The form of the marriage ceremony, however, is always governed by Swiss law (i.e., the marriage has to be solemnised by a Swiss registrar of civil status).
Recognition of foreign marriages
Under Switzerland’s private international law, a marriage concluded abroad is generally recognised if it has been validly concluded there. If either the bride or groom is a citizen of, or if both are domiciled in, Switzerland, the marriage may be concluded abroad unless the parties act with the clear intention of evading the rules regarding the requirements for marriage as stated by Swiss law.
THE LEGAL CONSEQUENCES OF MARRIAGE
Marriage, first and foremost, creates a legal status from which certain rights and duties flow (Civil Code, articles 159-180).
Generally, husband’s family name is adopted by a wife, unless the spouse are authorised by legitimate interests, to adopt the wife’s maiden name as their family name. A wife can retain her maiden name and her husband’s family name can be added to it, provided she made a declaration at the time of marriage before the civil registrar. Pursuant to a decision by the European Court of Human Rights involving a couple from Switzerland, a husband may now also carry a combined name, adding the wife’s name to his pre-marriage name.
Acquisition and loss of Swiss nationality are governed to a large degree by the Federal Law on the Acquisition and Loss of Swiss Nationality. In principle, descent from a Swiss mother and/or father automatically confers Swiss nationality upon a child. The child of unmarried parents, born to a Swiss mother, automatically receives Swiss citizenship, regardless of the father’s nationality.
The rule relating to a child born in wedlock shall apply if the parents got married each other subsequent to the birth of the child. Recognition of a child by an unmarried Swiss father will make the father liable for child support, but will not confer citizenship.
Previously, marriage to a Swiss man automatically conferred Swiss citizenship upon a non-Swiss woman. Since the revision of the Nationality Law in 1990 this has changed. The naturalisation of the spouse of a Swiss citizen is now only facilitated, as compared to general naturalisation proceedings. A spouse who has lived in Switzerland for five years and has been married for three years to a Swiss citizen then he or she can apply for the Swiss citizenship.
Property rights on marriage
The articles on matrimonial property of Civil Code provide for three different matrimonial property regimes. The statutory (or ‘ordinary’) regime is the deferred community of assets (‘Errungenschaftsbeteiligung’, ‘paricipation aux acquets’).
Generally spouses are subject to the same property principles as private individuals, except:
(i) on divorce, the matrimonial property regime that the parties have chosen, that applies by operation of law or pursuant to an earlier court order, ends and the property has to be reallocated between the parties according to the rules of the applicable property regime.
(ii) On death, the property also has to be divided according to the rules relevant to the specific matrimonial property regimes, before the rules applying to inheritance are effective.
(iii) In regard to the matrimonial home.
Both husband and wife are responsible to support their family and children financially. During marriage, the spouses may wish to apply to the court, under the rules of protective measures, for financial provision for themselves and children. The amount of contributions may be determined by the court that each spouse must make and may also order debtors of the spouses (such as employers) to make payments to the non-creditor spouse.
Children and parental responsibility
Parents have a joint responsibility for their children which lasts until the child attains majority at age 18. During marriage, they hold parental responsibility jointly. The costs of the children must be borne by the parents according to their mutually agreed division of roles within the family.
FINANCIAL PROVISION DURING MARRIAGE
While the majority of disputes concerning property and finance arise upon judicial separation and termination of the marriage by divorce, the Swiss Civil Code contains number of rules detailing good matrimonial behaviour during the marriage and provides for certain measures protecting the marriage and family union. If, during the marriage, one of the spouses neglects his or her duties to the conjugal union, or if the spouses cannot agree upon a matter important to their union, they may apply to the court at their domicile for intervention and/or mediation. The judge may try to mediate or suggest the help of social services and may, upon application, make one of a number of orders, detailed in the Civil Code, for financial provision.
Financial provision from the courts
Either party may apply for an order or for judicial mediation. The court to make an order is the court of the domicile of one or both spouses. In case of no common domicile, the court that has been applied to first will be competent to decide the matter.
The duties of spouses are contained in a number of provisions of the Civil Code under the heading ‘general effects of marriage’.
While some provisions use a very general open-clause approach that gives the court wide discretion in its decision, others are more specific. The most fundamental of the provisions on the effects of marriage in general is article 159 which is used to interpret all other statutory duties of the spouses. Article 163 states in greater detail that the spouses have to ‘jointly care for the appropriate maintenance of the family, according to each of their strengths.’
If spouses cannot agree on these issues, they can call upon a judge pursuant to the measures for the protection of the marriage. Under these provisions, the court is given a wide discretion as to measures that can be taken.
In International matters, jurisdiction for lawsuits or measures concerning duties of support between spouses lies with the Swiss judicial or administrative authorities at the domicile or, if there is none, at the habitual residence of one of the spouses. Pursuant to the Lugano Convention, to which Switzerland is a party, similar provisions apply. A person seeking a maintenance order may sue in the state in which the respondent is domiciled, or in the contracting state in which the plaintiff is domiciled or habitually resident.
PROPERTY DURING MARRIAGE
In the Civil Code, there are three basic matrimonial property regime models, each with possible variations, which the spouses can make applicable to their property upon marriage. A matrimonial regime can be a result from contract (i.e., marriage settlement), a court judgement or by operation of law. Since 1988, the most common matrimonial property regime is the ‘ordinary legal regime’. Separation of property is an ‘extraordinary legal regime’, which is established either by marriage settlement, by decision of a court (e.g., as a protective measure), or by operation of law (e.g., because of a bankruptcy of a spouse).
Rights of ownership and marital property regimes
The ordinary (statutory) regime provides for a combination of separate property during the marriage with a distribution of the marital acquisitions of both spouses upon dissolution. Subject to their obligations to support the family, during the marriage both spouses are entitled to administer and enjoy their income (from employment or other sources) and their own property, which includes the property of each of them owned individually at the time of the marriage and the property personally inherited during the marriage.
The community of marriage regime distinguishes between spouses’ common property and each spouse’s own property, with the common property belonging to both spouses indivisibly. Neither spouse may dispose of his or her share in common property, but they may administer the common property in the interest of the marital union, with each other being permitted.
Occupation of the matrimonial home
If the spouses live in a matrimonial home rented by one or both spouses, they must each explicitly consent to the giving of notice to quit to a landlord, otherwise the notice is invalid. Likewise, if one or both are owners of their matrimonial home, they must both explicitly agree to the sale or mortgage of their home. These restrictions apply to the premises where the family has its centre of life and they apply even if spouses live apart (i.e., during judicial separation or divorce proceedings), provided neither spouse has left the home for an indefinite period of time.
If, for some reason, a spouse is unable to obtain the consent of the other spouse, or consent is unreasonably withheld, he or she can apply to the court for a decision where consent may be dispensed with. Where there are grounds for the spouses to live apart, the court responsible for measures for the protection of the marriage must also, upon application by a spouse, determine whether an order for exclusive possession of the matrimonial home should be made.
In cases of violence by one spouse against the other, a spouse may seek an order giving him or her exclusive possession of the matrimonial home. Such an order can cover third parties, preventing them entering the home. If the spouses still have joint possession of the matrimonial home, each of them may ask the court for an order prohibiting a person from entering the house.
Author: Navin Kumar Jaggi