According to Switzerland’s Federal Code on Private International Law (CPIL), the following authorities shall, alternatively, have jurisdiction over legal divorce or separation actions (art. 59 CPIL):
- the Swiss courts at the defendant’s domicile;
- the Swiss courts at the plaintiff’s domicile if he/she resided in Switzerland for one year or is a Swiss citizen.
Swiss rules (art. 63 §1 CPIL) also provide, for logistical reasons, that the Swiss court competent over a divorce or a separation action also have jurisdiction over all matters ancillary to the divorce or separation (ex. the dissolution of the matrimonial property regime etc.).
DIVORCE AND SEPARATION
According to Swiss rules (art. 61 CPIL), Swiss law shall govern divorce and separation matters.
However, the application of Swiss law to the divorce does not necessarily mean that Swiss law will also govern the ancillary effects of the divorce (ex. the dissolution of the matrimonial property regime, the effects of paternity etc.).
ANCILLARY EFFECTS OF THE DIVORCE
Regarding the dissolution of the matrimonial property regime, the applicable law is determined based on a cascade approach (art. 54 CPIL).
First of all and unless the spouses operated a choice of law through a written agreement or within their marriage contract, the law of the State in which both spouses are domiciled simultaneously governs the matrimonial property regime. If this is not the case, the law of the State in which they were last domiciled simultaneously.
Otherwise, the law of their common State of Citizenship shall apply. If there is none, the Swiss regime of separate property applies.
Also, if the spouses transfer their domicile from one State to another, the law of the new domicile applies with retroactive effect from the date of the marriage, except if parties decide to preclude such a retroactive effect by a written agreement (art. 55 §1 CPIL).
The law applicable to the parent-child relationship is governed by the principle of the habitual residence of the child (art. 82 §I CPIL).
The law applicable to maintenance obligations between parent and child is determined based on the Hague Convention of October 2nd, 1973 on the Law Applicable to Maintenance Obligations (art. 83 §1 CPIL).
The costs of a divorce are usually divided between lawyer’s and Court’s fees.
In Geneva, Court’s fees vary from CHF 600.-, for a divorce by mutual consent with a full agreement, to several thousand when the situation is more litigious and requires a number of hearings. At the beginning of the proceedings, applicants shall provide the Court with an advance payment amounting up to the totality of the alleged legal costs. The repartition of these costs will then be decided by the Court within the divorce judgement.
The lawyer’s fees are usually set according to the time spent on the case, on an hourly rate basis (in Geneva, between CHF 250.- and CHF 500.- an hour). The importance and/or complexity of the case, the outcome achieved and the means of the client are the main elements taken into when setting the lawyer’s remuneration.
As a rule, lawyers must refrain from charging fixed fees but such agreements are quite common when it comes to divorces by mutual consent. Require the payment of a retainer fee at the beginning of the case also is a standard practice in Geneva.
It is not mandatory to stay in Switzerland during the divorce proceedings. However, even in the simplest cases, such as when the parties fully agree on all questions, the judge must hear the spouses at least once. Therefore, the spouses must be able to show up in court when required to.
