Divorce Agreement: General Information

In Switzerland, a divorce convention is understood as a mutual agreement between spouses in which they express their joint wish for divorce and specifically regulate the consequences of the separation. This written document addresses issues such as custody and visitation rights for common children, as well as the financial consequences of the divorce, including maintenance payments to one of the spouses and the division of assets and the marital home.

The divorce agreement is anchored in Articles 111 and 112 of the Swiss Civil Code (CC). It should be noted that issues related to custody and child visitation are treated with special attention by the court. The court ensures that the provisions agreed upon by the parents primarily serve the child's welfare.

In a divorce agreement, all questions that arise from the separation of the spouses regarding the consequences of the divorce must be settled, such as maintenance for common children, the division of assets, and other financial aspects. A complete divorce convention should therefore include at least the following points:

• Parental custody and care
• Child maintenance payments
• Spousal maintenance payments
• Division of property according to the marital property regime
• Use or retention of the family home or joint residential property
• Assumption of legal costs

A divorce convention is a mutual agreement between two spouses who seek a divorce by mutual consent. This document is only meaningful and valuable if submitted by both spouses. If the divorce is decided unilaterally by one of the spouses, the consequences of the divorce are negotiated in court.

Generally, it is better to reach an amicable settlement, as this allows both spouses to determine the consequences of the divorce themselves rather than having the court decide. Amicable settlements are generally assumed to be more sustainable and lead to greater satisfaction among all parties involved. Additionally, a divorce agreement enables a quicker processing of the divorce, significantly reducing the costs associated with the procedure. If a complete and legally proper divorce agreement is presented to the court, it usually takes less than an hour for it to be declared legally binding.

What can you do if you can't agree on the consequences of the divorce?

A divorce agreement must be submitted jointly to be valid. It cannot be a unilateral decision by one of the spouses. But what if the spouses agree on the divorce but cannot agree on all the consequences of the divorce?

In this case, the spouses can submit a joint divorce petition and regulate the consequences of the divorce in a so-called partial convention or partial agreement according to Article 112 of the Swiss Civil Code (CC). Remaining decisions are then negotiated in court. The court hears each of the spouses and proposes a divorce convention. Negotiating a divorce in this manner can save a certain amount of time compared to a fully contested divorce procedure, thus also bringing financial benefits.

To be accepted by the court, the divorce agreement must meet certain substantive and formal requirements. Formally, it must be a written document containing the personal details of the spouses. This includes their respective first and last names, dates of birth, and full addresses.

Articles 119 to 134 CC explain the ancillary consequences that must be regulated in a divorce. Thus, the divorce agreement must specify whether parental custody remains with both parents, which is the norm in Switzerland. Only in exceptional cases can sole custody be awarded to one parent. The agreement must also address the visitation rights of the non-custodial parent and the child's place of residence. The divorce convention may also provide for child support payments to the custodial parent. However, the exact amount can only be calculated by a court and is determined according to the child support table (Article 133 CC).

The spouses also decide in the agreement who will use the family home after the divorce (Article 121 CC). Thus, co-ownership or the rental agreement for the home can be transferred to one of the spouses. If no agreement is reached on the transfer, the house can be sold, and the proceeds divided between the spouses. However, this does not apply if the spouses live under the property regime of separation of property. If there is a claim for spousal maintenance according to Article 125 CC, the spouses can also regulate this in the divorce convention. The division of assets is regulated in the convention according to the marital property regime of the couple (Articles 120 and 181-251 CC).

Finally, the agreement usually addresses the question of legal costs and specifies whether these are to be borne by one or both spouses.

How is a Divorce Agreement Approved?

The divorce agreement, which has been jointly created by the spouses, is read in court. After examining the terms, the presiding judge can decide to approve the agreement, reject it entirely, or approve only parts of it. If necessary, the court may add additional points that were originally not considered in the agreement.

If one of the spouses feels disadvantaged by the agreement, the court may still decide to approve it. However, if the wording of the agreement violates the law or if one of the spouses is clearly disadvantaged, the divorce agreement will be rejected. This is especially true for provisions concerning joint children. The court ensures that all conflicts are resolved in the best interest of the child, with the parents' personal interests being secondary (Article 133 CC).

For these reasons, it is always advisable to seek family law advice from a lawyer before submitting the divorce agreement. Although not mandatory, a lawyer can review the agreement for its legal validity and fairness for both spouses. This greatly increases the chances of the divorce application being accepted directly, thus shortening the duration of the divorce process. A family law attorney can also independently advise you if you feel that the agreements were not made in your best interest.

It is indeed possible to revoke a divorce agreement if both spouses agree to do so. They must then draft a written statement requesting the annulment of the divorce agreement. This can be done up to the time of the court hearing. The spouses do not need to provide reasons for their request to revoke.

Additionally, it is possible to request amendments to the divorce agreement as long as it has not yet been approved by the court. These changes are typically made at the time of the hearing. If you need support, you should contact a family law attorney. The attorney will gladly advise you on legal matters.