divorce by mutual consent

In Switzerland, amicable divorce is the most common method of ending a marriage. This option is often chosen because it reduces both the cost and duration of the proceedings. Unilateral divorce, on the other hand, can be lengthy and costly. Divorce by mutual consent is often the result of an agreement between the spouses to separate, but it is important to check that both parties agree on all aspects of the divorce. The law governing divorce in Switzerland is the Swiss Civil Code (CC), in particular articles 111 et seq., which set out the substantive and formal conditions for dissolving a marriage and define the consequences for the relationship between the spouses and their children. The Swiss cantons also have their own family law laws, which may apply in the event of divorce, particularly with regard to child custody and the division of property.

The advantages of an amicable divorce process

Divorce by joint petition, governed by art. 111 CC, allows the spouses to decide together on most, if not all, of the procedure and terms of their divorce. They may be assisted by a joint lawyer to decide on the distribution and liquidation of their assets, including their apartment, house, car, bank accounts and the allocation of the family home. The spouses also discuss the distribution of their occupational pension plan (LPP), alimony and custody of their child(ren).

Divorce by mutual consent is advantageous because of its simplicity. This type of divorce avoids litigation procedures, the need for marital union protection measures (MPUC), confrontation hearings and the involvement of external experts. What’s more, it saves money, especially on lawyers’ fees. If the spouses are in full or partial agreement, they can even start the procedure without the help of a lawyer by completing a model divorce agreement and a petition for divorce with the court.

One of the main advantages of divorce by mutual consent is that it does not require a two-year separation period before proceedings can begin, unlike unilateral divorce (art. 114-115 CC), which does when the spouses disagree on the principle of separation. If both parties agree to divorce, the separation period is not required.

Amicable divorce with full agreement

In an amicable divorce, the spouses are the ones who agree on the terms of their separation. In this context, they can agree on all the terms of their divorce, which constitutes an amicable divorce with full agreement. The terms of the divorce generally include the following: custody of the children, allocation of the family home to one of the spouses, liquidation of joint assets such as bank accounts, BVG, car, real estate, furniture, etc., as well as setting the amount of alimony to be paid to one of the spouses.

The divorce agreement contains the incidental effects of the divorce and is presented to the court in a joint petition for divorce for ratification. However, if the spouses do not reach agreement on certain elements of the agreement but agree to divorce, this gives rise to an amicable divorce with a partial agreement.

Amicable divorce with partial settlement

As explained above, divorce by mutual consent with partial agreement (art. 112 CC) occurs when the ex-spouses agree to divorce, but are unable to agree on certain ancillary effects of the divorce, such as the amount of alimony, the allocation of the family home or child custody arrangements. In such cases, the judge will have to rule on these issues on the basis of the divorce agreement and the divorce petition submitted by the spouses, as well as hearings and expert reports if necessary.

In short, divorce by mutual consent is an advantageous solution for couples who want to end their marriage quickly and inexpensively. By choosing this option, the spouses can agree together on all the terms of their separation, thus avoiding the opening of litigation proceedings and the corresponding costs. However, it is crucial that both parties agree on all aspects of the divorce for this method to work effectively. In the event of partial disagreement, the spouses can still opt for divorce by mutual consent, but the judge will have to rule on the disputed points on the basis of the divorce agreement, the divorce petition and, where applicable, hearings and expert reports.