In cases of disagreement between spouses, an amicable divorce procedure cannot be initiated. In such cases, the law requires the spouses to undergo a two-year separation period. This separation situation may necessitate measures to be taken before the divorce is finalized.
The case of a mutual consent separation
In most cases, to expedite any procedure, the simplest solution is to opt for an amicable process. Because it is easier to agree on a solution together than to engage in judicial procedures that can last years and also be costly. In a problem involving two married people, the interest and well-being of the children must be the priority, and therefore, parents should expect shared custody to best meet their children’s needs.
Then, they must imperatively remember that it is always possible to seek marriage counselors to help them resolve their conflict, as well as to find alternatives to separation or divorce.
The case of a separation without consent
There are situations where the state of the couple’s life does not allow for the establishment of a separation agreement. This often happens when one of the parents leaves the family home and abandons their family. In this case, the remaining spouse can address a request to the judge to decide on urgent matters such as pronouncing the separation. In addition, the judge will also decide on the fate of the family home, custody, and visitation rights.
Procedure for initiating a request for marital protection measures
As with any matter involving legal consequences, before initiating any steps, it is advised to consult a lawyer. In a way, the decisions resulting from the marital protection measures will influence future procedures such as a unilateral divorce petition.
Thus, it is important to define the request well, as following the divorce process, which can sometimes take months or even years, the application of the measures can last more than 2 years. Finally, it is rare for the issues resolved in the measures, such as child custody and visitation rights, or the allocation of the family home, to be changed.
Duration of application of marital protection measures
In a divorce procedure, it happens that the two future ex-spouses are at an impasse. This can be due to several reasons, such as disputes over the very principle of divorce leading to refusal. In such situations, a separation period may be observed, sometimes leading to marital protection measures.
Marital protection measures
These measures aim to resolve problems arising from a long-term separation of the parents. They aim to find a solution for the following elements:
- parental authority and child custody;
- financial contributions; and
- allocation of housing and furniture.
The measures can be requested from the court in the domicile of one of the spouses, either unilaterally or by mutual agreement.
It is a written procedure that does not require a specific 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 sets a hearing to listen to the parties and attempt to reach an agreement. In some cases, children may also be heard.
Superprovisional measures can also be decided by the competent court, without respecting the right to be heard, when an urgent situation justifies it.
Importance and necessity of marital protection measures
Protective Measures for the Conjugal Union – were primarily established to provide solutions to issues related to the impacts of divorce on the lives of the spouses, before the pronouncement of their divorce.
These measures aim to safeguard the marital union and ensure its maintenance.
They come into play when the two spouses face disputes or events or situations that prevent an amicable divorce. Such as when one of the spouses contests the principle and agreements of the divorce.
These measures can be taken well before the divorce procedure if the judge deems them necessary. And in the absence of a request for modification or a unilateral divorce petition, and throughout the divorce period, these measures will remain in force.