The annulment of a marriage is a legal procedure that declares a marriage null and void. Unlike divorce, which ends 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 regarding the annulment of a marriage.
Marriage annulment can be sought in situations where the marriage was entered into in violation of certain essential conditions provided by the law. This process can be complicated and often requires the assistance of an attorney specialized in matrimonial law.
Conditions for annulment of a marriage
Annulment of marriage in Switzerland is a legal procedure that requires the application of certain general conditions before examining the specific cases of relative or absolute annulment. These conditions frame the manner in which annulment can be requested and processed by 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 open the way to a request for annulment, whether relative or absolute, depending on the circumstances.
Compliance with legal formalities is essential for the validity of a marriage in Switzerland. This includes the filing of appropriate documentation, adherence to legal deadlines, and the presence of a competent civil officer to perform the marriage. Any failure to meet these formalities can be a basis for annulment.
Only parties with a legitimate interest can request the annulment of a marriage. This generally 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 jurisdiction and applicable procedural rules. The annulment procedure must follow precise steps, and non-compliance with these rules can have consequences on 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 grave or definitive as absolute annulment. It is governed by specific conditions and offers the possibility of maintaining the marriage if the parties wish.
Coercion is a common ground for relative annulment. If one of the spouses was forced to enter into the marriage, they can request its annulment. Coercion can result from physical force or severe moral pressure, and the person invoking coercion must prove that they had no reasonable alternative but to consent to the marriage.
A fundamental mistake concerning the identity of the other party or their essential qualities is another ground for relative annulment. If one of the parties married believing, for example, that the other had certain essential qualities or characteristics which turned out to be false, this can be considered a fundamental error justifying relative annulment.
Relative annulment differs from absolute annulment in that it offers some flexibility. If the spouses decide to continue living together as husband and wife after becoming aware of the cause of annulment, they can confirm the marriage, and the possibility of annulment disappears.
The procedure for relative annulment must be initiated before the competent court, and the deadline for requesting this annulment varies depending on the reason and can go up to three years. It is also to be noted that only the spouses have the right to request relative annulment, not third parties.
Absolute annulment of marriage
Unlike relative annulment, where there may be a chance to confirm the marriage, absolute annulment renders the marriage null and void, with no possibility of validating it a posteriori. This annulment is more severe and applies in circumstances where the law has been more manifestly violated. These violations lead to absolute annulment, signifying that the marriage is considered null ab initio. Absolute annulment protects the integrity of the institution of marriage and ensures that fundamental societal standards are respected.
Absolute annulment is often related to the direct violation of legal provisions. For example, if one of the spouses is not of legal age to marry in Switzerland, which is 18 years, the marriage can be absolutely annulled.
Another case of law violation is a marriage of convenience. Also known as a sham marriage, it consists of a form of marriage contracted primarily or exclusively for the purpose of obtaining an immigration or nationality advantage. In Switzerland, this practice is considered a serious violation of the law and can lead to absolute annulment of the marriage. Determining the intention behind the marriage, especially if it is aimed at evading nationality laws, can be complex. Swiss authorities will examine various factors to determine if the marriage was contracted for this purpose. The lack of a significant relationship before the marriage, unusual circumstances surrounding the marriage like a hastily arranged wedding without friends or family, and contradictory statements from the parties and witnesses can be telltale signs of a marriage of convenience.
Another common ground for absolute annulment is kinship between the spouses. Marriage between close relatives is prohibited in Switzerland, and if such a marriage is contracted, it can be absolutely annulled. This includes marriages between siblings, parents and children, and other direct relations.
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 absolutely annulled. 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 provides protection, and that party can request annulment. Bigamy is not only a cause for annulment but can also lead to criminal sanctions in Switzerland.
The procedure for requesting the absolute annulment of a marriage must be initiated before the competent court, and there is generally no specific deadline for requesting this 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 as never having existed. This can have significant consequences in terms of property, child custody, and other legal aspects. The concerned parties 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 it requires a thorough understanding of the Swiss Civil Code and procedural rules.