Maintenance contribution in the event of divorce

Generally speaking, the Swiss Civil Code establishes that the obligation to provide for a minor child takes precedence over all other financial obligations arising from family law (art. 276a para. 1 CC). This priority extends to all elements necessary for the proper maintenance of the minor child, including any contributions towards his or her care (art. 285 CC).

In certain circumstances, the principle that the obligation to provide maintenance for a minor child takes precedence over other maintenance obligations under family law may be called into question by the judge. For example, if an adult child is also entitled to maintenance and his or her situation should not be overlooked (art. 276 para. 2 CC). This provision is designed to prevent children of full age who are studying or training from suddenly finding themselves in a difficult situation following their parents’ divorce. However, this does not mean that the adult child is placed on an equal footing with the minor child, who may be able to support himself through part-time work or a scholarship, unlike the minor child.

The order of priority in a deficit situation

Minor child and spouse

In the event of insufficient financial resources on the part of the person obliged to pay maintenance, the Swiss Civil Code stipulates that the maintenance of the minor child must take precedence over that of the former spouse. Similarly, the contribution to the child’s care takes precedence over that of the former spouse. It should be emphasized that these priorities also apply to children from other relationships of the person liable to pay the contribution.

The method of calculating maintenance contributions follows an order of priority. Firstly, it must be ensured that the debtor and the minor child each have a minimum subsistence level, in accordance with debt collection law. The next step is to calculate the maintenance contribution in accordance with the minimum subsistence figure laid down in debt collection law. Finally, the beneficiary spouse receives the remaining debt enforcement minimum, if additional resources are available. If this is the case, the other family law minimum subsistence expenses are covered according to the order of priority established above.

Under the Swiss Civil Code, priority is given to the maintenance of the minor child, rather than that of the spouse with whom the debtor is living in the same household. Consequently, the expenses of the new spouse are not to be taken into account in the debtor’s maintenance obligations towards the minor child, even if the new spouse is unable to provide for his or her own needs. It should be emphasized that this rule applies in all circumstances.

Adult child and spouse

Despite the addition of art. 276a para. 2 CC, existing case law stipulates that the former spouse’s contribution takes precedence over that of the adult child in training. This rule therefore continues to apply.

Minors and adults

Art. 276a para. 2 CC allows a degree of flexibility with regard to the pre-eminence of the obligation to maintain a minor child, in certain specific situations. This provision gives the judge some leeway to take account of the particular circumstances of each case, allowing for derogations from the general principle that priority is given to the maintenance of the minor child.

Recent case law

On April 20, 2022, the Swiss Federal Supreme Court handed down a decision in a case involving a blended family (TF 5A_382/2021). The case concerned a child born out of wedlock whose parents had separated. The mother subsequently remarried and had a second child.

In this case, the Federal Court had to rule on the competition between two maintenance obligations: that of the father of a child born out of wedlock to pay a contribution towards the child’s care, and that of the mother’s husband to provide for his family during the marriage. The Court ruled that the father of the first child was no longer required to make a contribution to the care of this child, as the father of the second child was providing for the mother’s needs through his income from his professional activity.

The Federal Court found that the mother and her new husband had established a traditional division of roles, with the husband providing money to the mother, who in return looked after the home and the child born of their union. According to the court, this arrangement took care of the mother’s maintenance costs, and consequently, as she was not facing financial difficulties, there was no need to set a contribution towards the care of the first child.

In making this decision, the Federal Court failed to fulfill the purpose of the child support contribution, which is to ensure the necessary resources for the child, even if the personal situation of the parent taking care of the child were to change. As a result, it is conceivable that the Federal Court may modify this ruling in the future.