Unilateral divorce

The difference between a divorce without mutual consent and a divorce by mutual consent with partial agreement

There is a fundamental difference between divorce by unilateral petition and divorce by mutual consent with partial agreement. In a divorce by unilateral petition, one of the spouses initiates unilateral proceedings when the other does not consent to the divorce, thus implying disagreement on the very principle of separation. On the other hand, if the spouses agree to divorce, but are unable to agree on the terms of the divorce, in particular ancillary effects such as child custody or alimony, this is considered a divorce by mutual consent with partial agreement.

To find out which divorce procedure to choose, the first question to ask is whether both parties agree to divorce or not. If both parties agree to divorce, then they can opt for an amicable divorce with full or partial agreement. On the other hand, if one of the parties does not agree on the principle of divorce, then divorce proceedings by unilateral petition must be initiated.

Conditions for unilateral divorce proceedings

In this way, the unilateral divorce procedure in Switzerland (art. 114 ff CC) allows one of the spouses to file for divorce without the agreement of the other spouse. This option is generally considered to be the most conflict-ridden of all divorce procedures.  

If you wish to initiate unilateral divorce proceedings in Switzerland, it is important to know that this can only be done in two situations: either the spouses have not been cohabiting for at least two years, or the maintenance of the marriage has become unbearable for one of the spouses. If neither of these two conditions is met, any application for divorce will be rejected by the competent court. If you have to wait two years before you can start divorce proceedings, you may consider setting up certain rules with your future ex-spouse for important issues such as child custody during the separation period, maintenance contributions or the allocation of the family home during this period. In this case, measures to protect the marital union (MPUC) can be useful in obtaining clear rules from the judge for this transitional period.   One or both spouses must apply to the judge for these protective measures. The judge cannot intervene ex officio.  

If you are in one of the situations that allow you to initiate unilateral divorce proceedings, you can start the process by filing a divorce petition with the appropriate court. This application must include the reasons justifying the request for divorce, as well as proposals for settling the incidental effects of the divorce, such as child custody, alimony, division of property, and so on.

If the spouse who has not filed for divorce wishes to contest the application, he or she may do so by contesting the grounds put forward, or by proposing modifications to the proposed settlement of the incidental effects of divorce. In the event of a dispute, the court will summon both parties to a conciliation hearing, during which the judge will attempt to help them reach agreement on the points in dispute. If the parties reach an agreement, the judge will homologate it and make it enforceable. If the parties fail to reach an agreement, the court will rule on the points in dispute and issue a divorce decree.

If a spouse files for a unilateral divorce, he or she must prove the grounds for the divorce. If the court finds that these grounds are insufficient to justify the divorce, the application will be dismissed. If the divorce is granted, the court will issue a divorce decree and determine the incidental effects of the divorce, taking into account the proposals of both parties.

It’s worth pointing out that unilateral divorce proceedings can be time-consuming and costly, especially if the parties fail to reach agreement on points of disagreement. In addition, this procedure can be emotionally taxing for both spouses, especially for the children involved.

All in all, unilateral divorce in Switzerland is a legal process that calls for great caution. The people involved must take into account the possible emotional and financial consequences of this procedure and, if possible, seek an amicable resolution to their differences.