Divorce by Mutual Consent: Legal Situation, Process, and Costs

In Switzerland, a clear majority of divorces are by mutual agreement. There are various reasons for this: On the one hand, the law favours amicable solutions to divorces. It is assumed that joint solutions are more sustainable and better for all parties involved - especially if there are underage children in the marriage. In Switzerland, it is therefore much more time-consuming to enforce a divorce action than to file for a mutually agreed divorce. In addition, divorces by mutual agreement are much quicker (they usually take a maximum of six months) and are therefore considerably cheaper than divorce proceedings. This is generally in the interests of both spouses, so that they favour amicable divorces whenever possible.

As the name suggests, the spouses file a mutual agreement divorce petition with the competent court. In other words, they appear as a united party and not, as in the case of an action for divorce, as separate parties. Accordingly, the divorce petition contains a number of documents that demonstrate the joint intention to divorce to the court and provide authentic proof of this. These include

• The divorce petition
• The divorce convention or partial convention
• Evidence of the personal and financial situation of both spouses

The Divorce Petition

The divorce petition is a document in which you and your partner declare your mutual will to divorce. You provide your personal details and state whether you want to settle the consequences of the divorce yourself in a convention or leave some decisions to the court. There are sample forms on the websites of many courts and on the internet that you can use for your divorce petition. There are no fixed formal requirements - however, you must both sign the petition by hand.

The divorce convention

In the divorce convention in accordance with Article 111 of the Swiss Civil Code, you declare the mutually agreed arrangements regarding the ancillary consequences of the divorce. This concerns the following aspects:

• Property settlement (division of assets) in accordance with Article 120 CC: The division of marital property is based on the matrimonial property regime of the couple.
• Remaining in or using the family home in accordance with Article 121 CC: As a rule, the partner who is dependent on the family home for personal reasons or because of the children is entitled to use it.
• Post-marital maintenance in accordance with Article 125 CC: If a spouse is unable to support themselves after the divorce, they are entitled to post-marital spousal support under certain conditions.
• Custody of children in accordance with Articles 133 and 296 et seq. CC: Even after a divorce, both parents normally retain joint custody. In serious cases, the sole custody of one parent can be enforced.
• Visiting rights for children in accordance with Art. 298 Para. 2 CC: If there are no serious reasons to the contrary, joint children have a right to regular contact with both parents and can also live alternately with both parents at their own request.
• Child maintenance in accordance with Article 328 et seq. CC: As a rule, the partner who is not primarily responsible for the care of minor children is obliged to pay maintenance for them. However, the amount of the payments depends on the partner's share of the care and financial circumstances.
• Pension equalisation in accordance with Article 122 CC: As a rule, pension assets acquired during the marriage are equalised between the spouses.
• Payment of legal costs: Normally, both partners pay half of the court costs and half of their own legal fees. However, it is also possible, for example, for one partner to pay the court costs in full.

You can draw up your divorce agreement yourself, but it is advisable to at least consult a family law or divorce lawyer to review it. A mediator can also help to reach unanimous agreements in the event of conflicting disputes about the consequences of the divorce. You should then enclose the finalised divorce agreement with your divorce petition when filing for divorce.

Article 112 of the Swiss Civil Code allows spouses who cannot agree on all aspects of the ancillary consequences to submit a so-called partial convention. In this convention, you record those points that you have already been able to settle together. The remaining points are left to the court for judgement (Art. 286 CPC).

Additional Evidence

So that the court can adequately assess whether the ancillary consequences have been settled appropriately and fairly for all parties involved, you should submit some additional documents relating to your personal and financial situation with your application. These include the family register, salary statements, tax certificates from the last few years, rental agreements or title deeds and pension fund statements. 

It is best to find out exactly which documents are required from a family law lawyer or directly from the relevant court. This will ensure that your application can be initiated smoothly and is not unnecessarily delayed.

As a rule, it is extremely rare for divorces to be refused on joint request. Nevertheless, the divorce court examines each application to determine whether the will to divorce is authentic and uninfluenced and whether the agreements in the divorce convention are appropriate and fair. To this end, it summons both partners separately and together to question them about the divorce petition and the divorce agreement. If there are still disputed aspects of the settlement, the court will also endeavour to reach an agreement on these (Art. 288 Para. 2 CPC). It is also possible for the judge to hear the couple's joint children, as it is a particular concern of the court to always judge divorces in the best interests of the children.

Until 2010, judges were subject to a two-month cooling-off period before they were allowed to confirm the divorce agreement. Nowadays, a judge can pronounce a divorce immediately and with legal effect as soon as all agreements have been found to be appropriate (Art. 288 Para. 1 CPC).

What happens if a divorce petition is rejected?

In rare cases, the court may reject an application for divorce. This mainly happens when the will to divorce is found by the court to be obviously influenced or the agreements are found to be highly unreasonable. However, even in such circumstances, there is often some room for manoeuvre to amend or supplement the agreements. In the event of a rejection, the court sets a deadline for both partners to file a divorce petition in accordance with Article 288 Para. 3 CPC.

In theory, you do not need legal representation at any point during a divorce - the law does not require divorcing couples to be represented by a lawyer. In addition, divorces by mutual agreement are usually very straightforward, as the spouses have already settled as many aspects as possible before the hearings.

Nevertheless, it is advisable to consult a divorce or family law solicitor, especially before filing a petition. Divorce is about securing your future life in various personal and financial aspects. Legal advice about your claims, rights and obligations will help you to draw up a fair and, above all, legally valid divorce agreement. A lawyer can also act as a mediator in the event of disputes.

In principle, there is no obligation to hire a lawyer for divorce proceedings in Switzerland. Nevertheless, it is advisable not to proceed with a divorce action entirely without the help of a lawyer. A family law lawyer can advise you, for example, on issues relating to the separation period or the unreasonableness of your individual situation. In this way, you may be able to initiate the action more quickly.

A lawyer can also help you draft a legally valid claim so that it is accepted by the court on the first attempt. Lawyers are your expert contacts at all times and know your best options for action at all stages of a contentious divorce process.