Amicable divorce is the most sought-after method in Switzerland. This is likely due to both time savings and substantial cost savings for spouses wishing to divorce, as the unilateral divorce process is expensive and lengthy. Mutual consent divorce also often corresponds to a state of affairs: the spouses agree to divorce; the question then arises as to whether there is full agreement on all divorce-related terms. More explanations on this subject are available below.
Advantages of an amicable divorce process
Divorce upon joint petition refers to a process of ending the marital regime where most, if not all, of the procedure and terms are decided and agreed upon by the spouses themselves.
The two spouses decide, possibly with the help of a jointly appointed lawyer, on how they will:
- liquidate their assets (apartment, house, car, bank account, etc.),
- allocate the family home,
- divide their pension fund benefits (LPP),
- allocate alimony, and
- arrange for the custody of their child(ren).
Mutual consent divorce also has the advantage of simplicity: no litigation, no marital protection measures (MPUC), no confrontational hearings, no interference from external experts, etc.
Simplicity also means cost savings, mainly in legal fees. An amicable divorce process can even be undertaken without a lawyer’s assistance in cases of total, or even partial, agreement, if the spouses are able to draft or complete an existing divorce agreement and submit a divorce petition to the court.
Last but not least, it is not mandatory to be separated for a two-year period prior to a mutual consent divorce. Indeed, in case of disagreement on the principle of divorce, a separation of at least two years is a mandatory condition for one of the spouses to then file a unilateral divorce request. This condition does not need to be met in case of the spouses’ agreement to divorce.
Amicable divorce with complete agreement
In an amicable divorce procedure, it is the future ex-spouses who agree on the terms of their divorce. In this context, they may agree on all the terms of the divorce; this is then referred to as an amicable divorce with complete agreement.
The terms of the divorce are mainly those listed above, namely:
- the child custody arrangement,
- the allocation to one spouse or the other of the family home,
- the liquidation of the spouses’ assets, such as bank accounts, LPP, cars, real estate, furniture, etc., and
- the amount of alimony awarded to one of the two spouses.
These terms, commonly referred to as the ancillary effects of the divorce, are outlined in a divorce agreement that is submitted to the court for ratification in a joint divorce petition.
In cases where the spouses cannot agree on some of the points mentioned above but still agree on the concept of divorcing, we then have an amicable divorce with partial agreement.
Amicable divorce with partial agreement
As mentioned above, mutual consent divorce with partial agreement occurs when the ex-spouses agree to divorce but do not agree on certain ancillary effects, such as the amount of alimony, allocation of the family home, or the terms regarding child custody.
In these cases, it is up to the judge to decide on the terms on which the spouses do not agree. The judge will make a judgment based on the documents provided in the divorce agreement and the divorce petition, as well as following one or more hearings and the possible intervention of experts.