A bad agreement is better than a good trial. The Swiss divorce procedure echoes this principle: the less an agreement exists between a married couple wishing to divorce, the longer and the more complex their procedure will be.
Divorce by mutual consent in Switzerland
First of all, the Swiss civil code entitles married couples to make a joint application for divorce. There are two types of joint applications for divorce: The joint application of divorce with complete agreement (Article 111 SCC) and the joint application of divorce with partial agreement (Article 112 SCC).
A. Joint application for divorce with complete agreement
A joint application for divorce with complete agreement exists when both spouses have agreed to divorce and have reached an agreement on all the effects of the divorce such as:
- The spousal maintenance
- The liquidation of the matrimonial property regime
- The attribution of family residence
- The partition of occupational pensions (Second Pillar of Swiss pension system)
- The fate of their common children
In this case, the judge will simply make sure that both spouses have reached the divorce agreement after careful consideration and of their own free will, and that the said agreement does not contain any clause that may render it unratifiable.
B. Joint application for divorce with partial agreement
A joint application for divorce with partial agreement exists when both spouses have agreed to divorce and have reached a partial agreement on the effects of divorce. In this case, they decide to entrust the judge with the care of settling the divorce effects over which a disagreement subsists.
As in the case of a complete agreement, the judge will also make sure that both spouses have reached the partial divorce agreement after careful consideration and of their own free will, and that the said agreement does not contain any clause that may render it unratifiable.
C. Estimated duration of the divorce procedure by mutual consent
In the event of a joint procedure for divorce, the estimated duration of the procedure amounts to two to five months.
Divorce by unilateral application (Article 114-115 SCC)
Should the spouses disagree to divorce, the spouse wishing to divorce may only make his application after two years of legal separation (Articles 117-118 SCC). To that effect, an application for legal separation may be made by mutual consent or unilaterally.
There are exceptional cases where a marriage can be dissolved prior to the two-year period, when serious grounds render the continuation of the marriage unbearable (Example: In case of marital violence).
The procedure of divorce by unilateral application lasts, in principle, much longer than the procedure of divorce by mutual consent. Depending on the complexity of the case, it may last several months, and even over a year.
Divorce and residence permit
Pursuant to Articles 42 and 43 of the Swiss federal act on Foreign nationals, a foreign national married to a Swiss national or a foreign national in possession of a permanent residence permit (C permit) is entitled, after the dissolution of the marriage, to obtain a residence permit (B permit) or to have his residence permit extended if:
- The marriage lasted a minimum of three years;
- Integration has been successful (Good knowledge of one of the national languages; having an employee status or running a business; being affiliated with cultural and social associations, etc.).
- Important personal reasons make an extended residency in Switzerland necessary (Examples: The spouse has been the victim of marital violence, he did not marry of his own free will, his social reintegration in the country of origin appears to be seriously prejudiced).
It is worth mentioning that should the foreign spouse be already in possession of a permanent residence permit (C permit), the dissolution of the marriage will by no means affect its extension.
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