Marriage annulment

The annulment of a marriage is a legal procedure that declares a marriage null and void. Unlike divorce, which puts an end to a legal marriage, annulment treats the marriage as if it had never existed. In Switzerland, matrimonial law is governed by the Swiss Civil Code (CC) and includes specific rules concerning the annulment of a marriage.

Marriage annulment can be requested in situations where the marriage has been concluded in violation of certain essential conditions laid down by law. This process can be complicated and often requires the assistance of a lawyer specialized in matrimonial law.

Conditions for annulling a marriage

Marriage annulment in Switzerland is a legal procedure that requires the application of certain general conditions before examining specific cases of relative or absolute annulment. These conditions govern the way in which annulment can be requested and handled by the Swiss courts.

A fundamental element of any valid marriage in Switzerland is the free and informed consent of both parties. Lack of informed consent can pave the way for a request for annulment, either relative or absolute, depending on the circumstances.

Compliance with legal formalities is essential for the validity of a marriage in Switzerland. This includes filing the appropriate documentation, respecting legal deadlines, and ensuring that a competent registrar is present to celebrate the marriage. Failure to comply with these formalities may be grounds for annulment.

Only parties with a legitimate interest can request the annulment of a marriage. This usually includes the spouses themselves, but in some cases of absolute annulment, third parties may also have a legitimate interest.

The annulment of a marriage must be requested before the competent court, according to the applicable jurisdiction and rules of procedure. The annulment procedure must follow precise steps, and failure to comply with these rules may have consequences for the outcome of the case.

Relative annulment of marriage

Relative annulment of marriage in Switzerland is a specific form of annulment that can be invoked in situations where the violation of marriage rules is not as serious or definitive as an absolute annulment. It is governed by specific conditions and offers the possibility of preserving the marriage if the parties so wish.

Coercion is a common ground for relative annulment. If one of the spouses has been forced to enter into the marriage, he or she can apply for annulment. Coercion may result from physical force or severe moral pressure, and the person claiming coercion must prove that he or she had no reasonable choice but to consent to the marriage.

Another ground for relative annulment is a fundamental error concerning the other party’s identity or essential qualities. If one of the parties entered into the marriage believing, for example, that the other had certain essential qualities or characteristics that turned out to be false, this may be considered a fundamental error justifying relative annulment.

Relative annulment differs from absolute annulment in that it offers a degree of flexibility. If the spouses decide to continue living together as husband and wife after learning of the cause for annulment, they can confirm the marriage, and the possibility of annulment disappears.

The relative annulment procedure must be initiated before the competent court, and the time limit for requesting this annulment varies according to the reason, and can be up to three years. It should also be noted that only spouses have the right to request relative annulment, not third parties.

Absolute annulment of marriage

Unlike relative annulment, where there may be a chance of confirming the marriage, absolute annulment renders the marriage null and void, with no possibility of validating it after the fact. This annulment is more severe and applies in circumstances where the law has been more obviously violated. Such violations lead to absolute annulment, meaning that the marriage is considered null and void ab initio. Absolute annulment protects the integrity of the institution of marriage and ensures that fundamental social norms are respected.

Absolute annulment is often linked to the direct violation of legal provisions. For example, if one of the spouses is under the legal age for marriage in Switzerland, i.e. 18, the marriage can be absolutely annulled.

Another violation of the law is the marriage of convenience. Also known as a “white marriage”, this is a form of marriage contracted primarily or exclusively to obtain an immigration or nationality advantage. In Switzerland, this practice is considered a serious breach of the law and may result in an absolute annulment of the marriage. Determining the intention behind the marriage, particularly if it is intended to evade nationality laws, can be complex. The Swiss authorities will examine various factors to determine whether the marriage was contracted for this purpose. The absence of a significant relationship prior to the marriage, unusual circumstances surrounding the marriage such as a hurried marriage without friends or family, and contradictory statements by the parties and witnesses can be telltale signs of a marriage of convenience.

Another common reason for absolute annulment is the relationship between the spouses. Marriage between close relatives is prohibited in Switzerland, and if such a marriage is contracted, it can be annulled absolutely. This includes marriages between brothers and sisters, parents and children, and other direct relationships.

Bigamy is also a ground for absolute annulment. If one of the spouses is already married, the second marriage is illegal in Switzerland and can be annulled absolutely. This applies even if the first marriage was contracted abroad. If one of the parties to the bigamous marriage was unaware of the situation, Swiss law offers protection, and that party can apply for annulment. Bigamy is not only a cause for annulment, but can also lead to criminal sanctions in Switzerland.

The procedure for requesting an absolute annulment of a marriage must be initiated before the competent court, and there is generally no specific time limit for requesting such an annulment. Unlike relative annulment, third parties with a legitimate interest can also request absolute annulment. This can include people directly affected by the illegal marriage, such as a legitimate spouse in the case of bigamy.

Absolute annulment has retroactive effects, meaning that the marriage is considered never to have existed. This can have important consequences in terms of property, child custody and other legal issues. The parties involved may need a specific agreement to settle these issues.

Absolute annulment in Swiss matrimonial law is a serious measure that treats the marriage as if it had never existed. It is reserved for situations where specific rules and regulations have been significantly violated, and requires a thorough understanding of the Swiss Civil Code and procedural rules.