In the event of disagreement between the spouses, amicable divorce proceedings cannot be initiated. In this case, the law requires the spouses to observe a two-year separation period. This separation may give rise to measures that need to be taken before the divorce is finalized.
Separation by mutual consent
In most cases, the easiest way to speed up proceedings is to adopt an amicable procedure. This is because it’s easier to agree on a solution together than to embark on legal proceedings, which can take years and be costly. In a problem involving two married people, the interests and well-being of the children must come first, and so the parents should expect alternating custody to best meet the requirements of their children.
Secondly, they must remember that they can always call on marriage counselors to help them resolve their conflict, but also find solutions other than separation or divorce.
Separation without consent
Sometimes, the situation in a couple’s life makes it impossible to draw up a separation agreement. This is often the case when one of the parents leaves the family home and abandons his or her family. In such cases, the remaining spouse can petition the judge to rule on urgent matters, such as whether or not to declare a separation. In addition to this, the judge will also decide on the fate of the family home, custody and visiting rights.
How to apply for marital union protective measures (MPUC)
As with any matter involving legal consequences, it is advisable to consult a lawyer before taking any steps. This is because, in a way, the decisions resulting from protective measures will influence future proceedings, such as divorce by unilateral petition.
So it’s important to define your request carefully, because depending on the divorce process, which can sometimes take months or even years, the application of measures can take more than 2 years. Finally, it is rare for the issues resolved in the measures to be changed, such as the allocation of child custody and visiting rights, or the allocation of the family home.
Duration of protective measures for spouses
In divorce proceedings, it can happen that the two future ex-spouses reach an impasse. This can be due to a number of reasons, such as disputes over the very principle of divorce leading to refusal. In such a situation, a period of separation can be observed, sometimes leading to measures to protect the marital union.
Measures to protect the marital union
These measures aim to resolve the problems involved in separating the two parents over a long period. For example, they aim to find a solution to the following issues:
- parental authority and child custody ;
- financial contributions; and
- allocation of accommodation and furniture.
The procedure
Measures may be requested from the court in the place where one of the spouses is domiciled, either unilaterally or by agreement between the spouses.
This is a written procedure requiring no particular form. A simple letter is sufficient to request one or more of the measures listed in articles 172 to 180 of the Swiss Civil Code.
The competent judge schedules a hearing to hear the parties and try to reach an agreement. In some cases, children may also be heard.
Superprovisional measures may also be decided by the competent court, without respecting the right to be heard, when justified by an urgent situation.
The importance and necessity of measures to protect the marital union
Marital union protective measures (MPUC) were introduced primarily to resolve issues relating to the impact of divorce on the lives of the spouses, before the divorce was pronounced.
These measures are designed to safeguard and maintain the marital union.
They come into play when both spouses are faced with disputes, events or situations that prevent an amicable divorce. For example, when one of the spouses contests the principle and agreements of the divorce.
These measures can be taken well in advance of the divorce proceedings, if the judge deems them necessary. And in the absence of a petition for modification or a unilateral divorce petition, and throughout the divorce period, these measures will remain in force.
