Maintenance contributions in case of divorce

The legal principle

In very general terms, the Swiss Civil Code stipulates that the obligation to maintain a minor child takes precedence over other maintenance obligations under family law (art. 276a para. 1 CC). This priority applies to all proper maintenance of the minor child, and therefore also includes any contribution towards care (art. 285 CC).

However, the judge may depart from this principle in certain situations. This may be the case, for example, where a child of full age is entitled to maintenance and should not be prejudiced (art. 276 para. 2 CC). The aim is to prevent a child who is 18 and still in education at the time of the divorce from having to abruptly find himself in a situation of need. However, this nuance will not put the adult child on an absolutely equal footing, as he or she may be able to find part-time work or a scholarship, whereas the minor child cannot.

The order of priority in a deficit situation

Minor child and spouse

If the means available to the maintenance debtor are insufficient to cover the family’s needs, the maintenance of the minor child will take precedence over that of the divorced spouse. The support contribution will also take precedence over the maintenance of the former spouse. These priorities also apply to children from other relationships.

In terms of calculation method, the debtor’s minimum subsistence figure under debt collection law must be covered first, then that of the minor child, followed by the contribution to support (also established according to the minimum subsistence figure under debt collection law) and finally the spouse’s minimum subsistence figure under debt collection law.

Once everyone’s minimum subsistence has been covered, it is necessary to examine whether there are any remaining resources and, if so, whether certain expenses of the minimum subsistence under family law can be covered, in the same order of priority as above.

The maintenance of the minor child also takes precedence over the maintenance of the spouse with whom the debtor is living in the same household. The expenses of the new spouse must therefore not be included in those of the debtor of the minor child’s contribution. This remains the rule even if the new spouse is not responsible for his or her own maintenance.

Adult child and spouse

The former spouse’s contribution always takes precedence over the contribution of the adult child in training.

Despite the introduction of article 276a paragraph 2 of the Civil Code, existing case law still applies and the priority given to the former spouse is maintained.

Minors and adults

Article 276a paragraph 2 of the Civil Code allows the primacy of the maintenance of a minor child to be relativized in well-founded cases.

This is a margin of appreciation left to the judge according to the concrete circumstances of the case. This provision therefore allows the judge to deviate from the basic legal principle giving priority to the maintenance of the minor child.

Recent case law

On April 20, 2022, the Swiss Federal Court handed down a decision in the case of a blended family (TF 5A_382/2021).

This is a case where a first child was born out of wedlock. After the parents of this child separated, the mother remarried and gave birth to another child.

The Federal Court had to rule on the question of the concurrence between the first father’s obligation to make a contribution to the child’s upkeep and the mother’s husband’s obligation to provide maintenance, in accordance with the principles of family maintenance during marriage. In its decision, the Court held that the father of the first child was no longer obliged to make a contribution to the child’s care, since the father of the second child was meeting the mother’s living expenses through his income from gainful employment. In arriving at this result, the Federal Court explained that, as the mother and her new husband had agreed on a traditional division of tasks, whereby the husband paid money to the mother who, in return, looked after the household and the joint child, the latter’s maintenance costs were covered. Thus, as she was not in deficit, it was not appropriate to set a contribution towards the upkeep of the child of the first marriage.

In so doing, the Federal Court failed to respect the purpose of the contribution to child support, which was to ensure that the child had the necessary resources, even in the event of a change in the personal circumstances of the parent providing child support. It is therefore not out of the question that the Federal Court will eventually review this case law.