Swiss family law, codified in the Civil Code (CC), governs all legal relationships arising from marriage, registered partnership and filiation. It touches on the most personal — and often the most difficult — questions in life: separation of spouses, exercise of parental authority, child maintenance, protection of vulnerable persons. PBM Avocats assists its clients with rigour and sensitivity in these proceedings before the courts of Geneva and Vaud. Our lawyers are also well versed in cross-border situations, which are common in the Lake Geneva region.
Marriage, Matrimonial Regimes and Marriage Contracts
Marriage has significant legal consequences for the financial situation of the spouses, which depend in part on the applicable matrimonial regime. In the absence of a marriage contract, Swiss spouses are automatically subject to the participation in acquired property regime (art. 196 et seq. CC). This regime distinguishes between own property — property brought into the marriage or received gratuitously — and acquired property, meaning property obtained during the marriage using employment income. Upon dissolution of the regime (divorce, death), each spouse participates equally in the increase in value of the other's acquired property.
Spouses may depart from the statutory regime by authentic marriage contract (art. 182 CC) to adopt separation of property — each retaining full ownership of their own assets — or community of property, which involves a broader pooling of assets. They may also adapt the participation in acquired property regime, for example by modifying the share of participation upon liquidation, including certain own assets in acquired property, or by providing specific clauses in the event of death. PBM Avocats drafts these agreements taking into account the tax and inheritance consequences of each choice.
Divorce and Judicial Separation
Divorce procedure in Switzerland is governed by art. 111 to 149 CC and by the Code of Civil Procedure (CPC). Divorce by joint petition (art. 111 CC) allows spouses who agree on the principle and on all ancillary effects — dissolution of the matrimonial regime, sharing of the 2nd pillar (art. 122 et seq. CC), child custody and maintenance, post-divorce maintenance — to submit a comprehensive agreement to the court. The court verifies that the children's interests are protected and that the agreement is not manifestly inequitable before approving it.
In the absence of agreement, a spouse may file a unilateral divorce petition after two years of effective separation (art. 114 CC). If continuation of cohabitation is unbearable for serious reasons, divorce may be requested immediately (art. 115 CC). During divorce proceedings, the court may order provisional measures relating to separate living, child custody, provisional maintenance contributions and allocation of the family home. PBM Avocats advises you on procedural strategy and represents you at every stage.
Parental Authority, Custody and Visiting Rights
Since the 2014 reform, joint parental authority is the general rule, including for unmarried parents (art. 296 and 298a CC). It means that both parents take important decisions regarding the child together: education, medical care, choice of place of residence. Sole parental authority is granted only in exceptional cases, particularly where one parent is seriously incapacitated or absent.
Physical custody — the child's principal place of residence — may be shared between the two parents or assigned to one, the other having visiting rights. The court decides in the best interests of the child (art. 133 CC), taking into account emotional bonds, each parent's capacity, geographical stability, schooling and, if the child is old enough to express a view, the child's own wishes (art. 298 para. 1 CC). A social report or child psychiatry expert opinion may be ordered by the court to inform its decision.
Child Maintenance and Post-Divorce Contributions
Every child has the right to a maintenance contribution from their parents until the end of their education, for as long as they cannot reasonably be expected to support themselves (art. 276 et seq. CC). Since the reform of child maintenance law that came into force on 1 January 2017, the contribution covers not only direct costs (food, clothing, education, health) but also personal care of the child, which is valued in the calculation. The court uses a method based on the child's actual needs and the parents' contributory capacity, while preserving a minimum vital income for each.
Maintenance contributions between ex-spouses (art. 125 CC) are designed to compensate for impaired earning capacity caused by the marriage. The Federal Supreme Court has clarified in its case law that post-divorce maintenance is in principle transitional and that each spouse must aim for financial autonomy within a reasonable period, taking into account the age of the children and the length of the marriage. Maintenance contributions are revisable in the event of significant changes in circumstances (art. 129 CC).
Frequently Asked Questions about Family Law
What matrimonial regimes are available under Swiss law?
The Swiss Civil Code (CC) provides for three matrimonial regimes: participation in acquired property (the ordinary statutory regime, art. 196 et seq. CC), community of property (art. 221 et seq. CC) and separation of property (art. 247 et seq. CC). In the absence of a marriage contract, spouses are automatically subject to participation in acquired property. This regime distinguishes between each spouse's own property (property brought into the marriage or received by inheritance or gift) and acquired property (property obtained during the marriage from employment income), the increase in value of which is shared equally upon dissolution. Spouses may choose a different regime or adapt the statutory regime by a marriage contract executed before a notary.
How does divorce procedure work in Switzerland?
Under Swiss law, there are two types of divorce: divorce by joint petition (art. 111 or 112 CC) and unilateral divorce (art. 114 CC). Divorce by joint petition, the most common form, allows spouses who agree on the principle of divorce and its effects (dissolution of the matrimonial regime, alimony, child custody) to submit a comprehensive agreement to the court, which approves it after hearing the parties. Unilateral divorce is available after two years of effective separation, or immediately if cohabitation is unbearable. Proceedings take place before the civil court at the spouses' domicile.
How is child custody determined after divorce?
Since the reform of parental authority law in 2014 (in force from 1 July 2014), joint parental authority is the rule under Swiss law (art. 296 and 298 CC), even in cases of divorce or separation. It means that both parents continue to take important decisions concerning the child together. Physical custody (principal residence) may be shared or assigned to one parent, depending on the child's best interests. Criteria taken into account include each parent's educational capacity, availability, proximity of homes, stability for the child and, from a certain age, the child's own wishes.
What is post-divorce alimony and how is it determined?
Maintenance contributions between ex-spouses (art. 125 CC) are designed to compensate for reduced earning capacity caused by the marriage, particularly where one spouse has reduced or given up professional activity to care for children. The court takes into account the standard of living during the marriage, the length of the union, the age and health of the spouses, and their respective incomes and expenses. Recent Federal Supreme Court case law favours the financial autonomy of ex-spouses and encourages a return to professional activity within a reasonable period. Contributions are set for a limited duration, except in cases justified by particular circumstances.
What is the role of the Child and Adult Protection Authority (CAPA/APEA)?
The Child and Adult Protection Authority (APEA) is the administrative body responsible for ordering protective measures where the welfare of a child or adult is at risk and those concerned cannot remedy the situation on their own (art. 307 et seq. CC for children, art. 388 et seq. CC for adults). It may withdraw parental authority, place a child outside the family home, or establish a curatorship for a vulnerable adult. The APEA is organised differently depending on the canton: in Geneva it is the Tribunal de protection de l'adulte et de l'enfant (TPAE); in the canton of Vaud, competence lies with the justices of the peace.