Divorce Lawsuit in Switzerland: Legal Situation, Process, and Costs

Switzerland aims to encourage divorcing couples to address their conflicts together and find a mutual solution for their divorce in Switzerland. For this reason, by law, it is more difficult to enforce a unilateral divorce petition – a divorce lawsuit – than to apply for a mutual divorce. Specifically, this means that according to the Civil Code, a divorce lawsuit can only be initiated if the couple has either lived separately for a certain period or the continuation of the marriage has become unreasonable for the suing partner.

Divorce Lawsuit after Separation

According to Article 114 of the Civil Code, you can demand or sue for a divorce after you and your partner have lived separately for at least two years. This means that, on the one hand, you must have lived separately from each other and, moreover, there must have been an intention to separate during this time. For example, a several-week business trip by your partner does not count as voluntary separation time.

What Counts as Separation?

The separation period begins with the decision to separate and the dissolution of the shared household. A condition for "living separately" is that you no longer live together economically, physically, or mentally. However, you are still allowed to have contact with each other during the separation period and may, for example, occasionally support each other financially. Also, an attempt at reconciliation usually does not restart the separation period in court. If you are unsure how much contact is allowed during the separation period, you can consult a family law or divorce attorney as a precaution.

Divorce Lawsuit due to Unreasonableness

Article 115 of the Civil Code allows you to shorten the separation period if there are serious reasons for the unreasonableness of continuing the marriage. Divorce courts recognize serious reasons, including the following:

• Application of physical or psychological violence
• Serious injury to honor or personality
• Marriage fraud and sham marriage
• Stalking during separation
• Vice-like behavior of the partner, such as prostitution or pimping
• Serious criminality of the partner

It is important to note here that the reasons for this behavior cannot be attributed to you as the suing party. Therefore, the court examines the personal history of the couple and, if necessary, also the question of fault in certain circumstances in divorce lawsuits due to unreasonableness.

To initiate a divorce lawsuit, you need to file it with the civil court in your residential canton or the residential canton of your spouse. Your partner will then have the opportunity to respond to the lawsuit. This is followed by a summons to a so-called conciliation hearing, where it is assessed whether the conditions for divorce are met. If they are met, an attempt is made to reach an agreement on the consequences of the divorce. This is followed by the main hearing, in which both spouses present their respective positions with relevant evidence. Based on these hearings, the court will make its judgment and can pronounce the divorce as legally binding.

Duration of a Divorce Lawsuit

Regarding the duration of a divorce lawsuit, it is first important to note that most cases are preceded by a two-year "waiting period." This waiting period is waived in cases of unreasonable hardship. The duration of the lawsuit process then largely depends on whether and how quickly you and your partner can agree on the ancillary consequences. Therefore, the duration of the proceedings can vary from a few months (in case of a quick agreement) to several years.

Cost of a Divorce Lawsuit

Due to the longer duration and often higher complexity of divorce lawsuits, they come with correspondingly high costs. These cannot be universally quantified as each divorce lawsuit has a different value of the dispute and can be resolved at different speeds. The costs for lawyers and court proceedings also vary greatly between cantons.

The process costs consist of court and lawyer fees for both parties. Court costs average between 1,000 and 4,000 CHF, depending on the canton. The amount of lawyer fees depends on whether the lawyers charge according to canton regulations or individual fees and whether they calculate these based on time spent. Common rates are between 250 and 400 CHF per hour.

Who Bears the Process Costs?

The court decides which party bears the costs of the proceedings. According to Article 106 of the Swiss Code of Civil Procedure (CPC), the losing party usually bears the entire process costs. If there is no clearly superior party, the court will decide at its discretion.

By the way: If one of the partners can prove that they cannot afford the divorce costs, they can apply for free legal proceedings and representation.

Costs in Case of Withdrawal of the Lawsuit

If the plaintiff withdraws their divorce lawsuit, they are automatically considered the losing party. Therefore, if you withdraw your divorce lawsuit, you would have to bear all the incurred costs.

It happens more often than one might think that divorce lawsuits are initially dismissed by the court. This can have various reasons: usually, it is because the two-year separation period has not been clearly exceeded. However, formal errors are also a common reason for divorce lawsuits being dismissed, sometimes even multiple times.

In divorce lawsuits, as the plaintiff, you must specify concrete legal claims and describe them in detail. Additionally, it is not enough to merely demand a settlement of marital property or post-marital maintenance payments. You must specify these financial demands with exact figures for the lawsuit to be legally valid and recognized by the court. For this reason, it is highly recommended to draft a divorce lawsuit together with a divorce or family law attorney and to seek their advice on your course of action.

Understandably, most divorces in Switzerland are initiated by mutual consent: they are significantly cheaper, usually concluded faster, and are also less emotionally taxing for those involved. However, sometimes it seems impossible to reach an agreement with a former partner.

If you still want to avoid a divorce lawsuit and instead file for a mutual consent divorce, you have two options: on one hand, you can try to resolve existing conflicts out of court with the help of a mediator and formulate a mutual desire for divorce. On the other hand, even in a consensual divorce, you do not have to agree on all ancillary issues. According to Article 111 of the Swiss Civil Code (CC), it is possible to submit a partial agreement with the divorce application, so that the court only decides on the unresolved issues.

In principle, there is no obligation to have a lawyer for divorce lawsuits in Switzerland. Nevertheless, it is advisable not to handle a divorce lawsuit entirely without legal assistance. A family law attorney can, for example, advise you on questions regarding the separation period or unreasonableness in your individual situation. This can potentially enable a faster initiation of the lawsuit.

A lawyer can also help you draft a legally valid lawsuit, so it is accepted by the court on the first attempt. Attorneys are knowledgeable contacts at all times and know your best options in all phases of a contentious divorce process.