14 August, 2017

How to divorce in Switzerland without separation: timing and procedure

The Switzerland is one of the many foreign countries where it is allowed to divorce without a previous separation legal proceeding, on the contrary of provisions set forth under Italian law, and the legal procedure for the divorce is a bit different to the one set forth in Italy, while the timing may vary: it depends on the fact that the procedure begins upon mutual or upon unilateral request. For these reasons, it is appropriate to appoint a Professional Law Firm that has a deep knowledge of family law, also internationally, and may advise the client about the execution of the law of Switzerland and possibly about the comparison between the law of Switzerland and the Italian law.


The different types of divorce legal proceeding in Switzerland

The current governing law in Switzerland provides for different types of divorce (divorzio) legal proceedings.

The first one is the one upon mutual request. It concerns for example the couples who jointly decide to dissolve their marriage. Husband and wife provide the Judge with a complete “agreement” (contratto) which is purposed to govern any relationship between the two spouses, i.e. the economic matters as well as possible agreements about the assignment of children. The above-mentioned “agreement” shall be verified by the Judge, who shall be able to convene the spouses jointly or separately, in order to assure her/himself about the adequacy of the “agreement” so to obtain the validation of it and the issuance of the decision concerning the divorce. This procedure is a very fast one and can terminate even in a few weeks.

The second one is the one upon unilateral request after two years of separate life. We may suppose for example that husband and wife have to face themselves serious conjugal crisis. Frequent discussions, which may arise out of groundless reasons, convince them to take a pause for reflection. Therefore, husband and wife decide to stop living together. After two years the wife, who in the meantime has met another man, is convinced that the marriage is definitely over and consequently decides to request for divorce. If the husband does not agree with her idea of dissolving the marriage, the wife can file a unilateral request for divorce which will trigger a litigation legal proceeding, where the Judge will set forth all the respective terms and conditions.

The third is the “hybrid” one. If the spouses agree upon their intention to divorce but they do not agree upon some terms and conditions of the agreement (for example, upon the assignment of the family house), it may be a case of divorce upon mutual request by means of partial agreement. In this case, differently to what set forth under Italian law, the Judge shall verify the agreement (accordo) even if it is a partial one, and in case she/he considers it appropriate, she/he shall validate it while the legal proceeding shall continue concerning the terms and conditions not yet agreed by the spouses. This two latest procedures may last a bit longer, even several months, due to the level of conflict between the spouses.

The governing law of Switzerland provides also for the possibility of getting a divorce adducing the break of the conjugal tie when, due to serious reasons, the necessary assumptions to go on with the marriage suddenly cease to exist. In these cases, it is possible to get a divorce even if have not passed two years after the end of the cohabitation (convivenza): for example, in cases of harassment or adultery. In this case, the timing is quite similar to the one concerning the one upon unilateral request.

In some cases the applicable law to the separation and to the divorce is chosen pursuant to Reg. EU No. 1259/10; moreover, it is also possible to file a request for a divorce in Switzerland also for foreign people in cases where at least one spouse is also a Swiss citizen or in cases where both husband and wife are foreigners but are living in Switzerland thanks to their permit “permesso di dimora”.

Our law firm may advise you concerning the execution of the whole legal proceeding in Switzerland also thanks to a team of professionals located all over the Swiss Confederation. Marzorati Law Firm is indeed specialised in family law, also internationally, and its lawyers usually deal with separations, divorces, child support and family support. To advise all its clients all over Italy and worldwide, Marzorati Law Firm has also developed a network, made of at least a barrister/solicitor, an attorney-at-law, an abogado, and an avocat à la cour, all qualified in their respective country of practice.

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