Mutual consent divorce

Amicable divorce is the most popular method of divorce in Switzerland. In all likelihood, this is due both to the time saved and the substantial savings for spouses wishing to divorce, as unilateral divorce proceedings are expensive and time-consuming. Divorce by mutual consent also very often corresponds to a state of fact: the spouses agree to divorce; the question then arises as to whether or not there is full consent on all the terms relating to the divorce. More on this subject below.

The advantages of an amicable divorce process

Divorce by joint petition is a process for breaking up the matrimonial property regime in which most, if not all, of the procedure and conditions are decided and agreed by the spouses themselves.

The two spouses decide together, possibly with the help of a jointly-appointed lawyer, how they are going to :

• liquidate their assets (apartment, house, car, bank account, etc.),
• allocate the family home,
• share their BVG,
• award alimony, and
• provide care for their child(ren).

Divorce by mutual consent also has the advantage of simplicity: no litigation, no measures to protect the marital union (MPUC), no confrontation hearings, no interference from outside experts, and so on.

Simplicity also means savings, especially in legal fees. Amicable divorce proceedings can even be undertaken without the assistance of a lawyer in the case of full or even partial consent, if the spouses are able to draw up or complete an existing model divorce agreement and petition for divorce to the court.

Last but not least, it is not mandatory to be separated for a period of 2 years prior to a divorce by mutual consent. In fact, in the event of disagreement over the principle of divorce, a separation of at least two years is a mandatory condition for either spouse to be able to file for divorce unilaterally. This condition need not be met if the spouses agree to divorce.

Amicable divorce with full agreement

In an amicable divorce, the future ex-spouses agree on the terms of their divorce. In this case, they may agree on all the terms of the divorce; this is known as an amicable divorce with full agreement.

The terms of divorce are mainly those listed above, namely:

• childcare arrangements,
• the allocation of the family home to either spouse,
• liquidation of the spouses’ assets, i.e. bank accounts, BVG/LPP, car, real estate, furniture, etc., and
• the percentage of alimony awarded to one of the spouses.

These terms, commonly known as the incidental effects of divorce, are set out in a divorce agreement, which is submitted to the court for ratification in a joint petition for divorce.

If the spouses cannot agree on some of the above-mentioned points, but do agree on the concept of divorce, then we are in the presence of an amicable divorce with partial agreement.

Amicable divorce with partial settlement

As mentioned above, divorce by mutual consent with partial agreement occurs when the ex-spouses agree to divorce but disagree on certain ancillary issues, such as the amount of alimony or child support, the allocation of the family home or child custody arrangements.

It is then up to the judge to decide on the terms on which the spouses disagree. The judge will render judgment on the basis of the documents provided in the divorce agreement and the divorce petition, as well as following one or more hearings and the possible involvement of experts.