Anyone facing the decision to dissolve a marriage in Switzerland is often confronted with a mountain of legal questions. Swiss law, however, provides clear paths for ending a marriage, while consistently emphasizing the protection of all parties and the fairness of any agreements. In this article, you will find a short overview of the different types of divorce paths, the legal requirements, and the issues that arise in international situations, such as those involving Thai law.

The Court as a Mandatory Authority

In Switzerland, there is no such thing as a “private divorce.” No matter how much the spouses agree, a divorce must always be granted by a court. Even if both parties submit a signed agreement, the court still takes an active role. As part of what is often called a fairness review, the judge ensures that the arrangements made, especially regarding children and pension assets, are fair and do not place one side at an unreasonable disadvantage. Only after this review and a personal hearing does the divorce judgment become legally binding.

Divorce by Joint Petition

The simplest and often most cost-effective route is divorce by mutual consent. In this case, both spouses apply to the court together and declare that they wish to divorce.

Full Agreement vs. Partial Agreement

Ideally, the spouses reach a full agreement. This means they agree on all the consequences of the divorce, such as the division of property (matrimonial property regime), maintenance, child custody, and the division of pension fund assets. This agreement is recorded in a so-called divorce convention or settlement agreement (Scheidungskonvention).

If the spouses cannot agree on every point, a partial agreement is also possible. In that case, they still file for divorce together, but ask the court to decide the disputed issues, for example the amount of spousal support. This usually shortens the proceedings considerably compared with a fully contested divorce, because the principle of the divorce itself is already accepted.

When One Spouse Does Not Agree: Divorce by lawsuit

Agreement on the end of the marriage is not always possible. If one spouse refuses the divorce, the other may initiate divorce proceedings by filing a court action. In such cases, however, strict deadlines apply:

• Two-year separation period (Art. 114 Swiss Civil Code): As a rule, an action for divorce may only be filed once the spouses have lived separately for at least two years. This period serves as a time for reflection and is intended to prevent hasty divorces.
• Exception in cases of intolerability (Art. 115 Swiss Civil Code): In rare and serious cases, divorce may be requested before the two-year period has passed if continuing the marriage has become intolerable for serious reasons not attributable to the spouse bringing the claim, for example in cases of domestic violence.

Consequences of Divorce: Alimony Is Not a “Penalty”

One of the most common misunderstandings concerns maintenance payments. In Switzerland, divorce is based on the principle that fault is irrelevant. This means that the question of who was “to blame” for the breakdown of the marriage, for example because of infidelity, has no bearing on the financial consequences.

This is a significant difference from legal systems such as Thailand, where fault can have a an impact on financial claims. In Switzerland, maintenance is determined primarily by the standard of living during the marriage and the economic capacity of both parties.

The International Trap: Returning from Thailand and Choice of Law

Things become particularly complex for couples with an international background. A classic scenario is this: a couple lived together in Thailand, one person returns to Switzerland, and now wants to initiate divorce proceedings there.

This is where Article 54 of the Swiss Private International Law Act comes into play. It determines which national law applies to the matrimonial property matters, meaning the division of assets, if the spouses have not made an explicit choice of law. The legal logic follows this sequence:

1. Common current domicile: The law of the state in which both spouses are currently living at the same time applies.
2. Last common domicile: If the spouses no longer share a domicile, because for example one person has already returned to Switzerland, the law of the state in which they last lived together at the same time applies. In our example, this would be Thai law.
3. Common national law: If the spouses never had a common domicile, their common national law applies.
4. Swiss law as a fallback: Only if none of the above applies will Swiss law, specifically separation of property, apply as a fallback.

The problem is obvious: without prior planning, the division of assets in a divorce in Switzerland may suddenly be governed by Thai law simply because that was the couple’s last common place of residence. This can lead to completely unexpected financial results, because Thai matrimonial property law differs from the Swiss regime of participation in acquired property. This is mainly an issue in contested divorces. In such cases, the unwilling spouse may use this point to make the proceedings far more complicated. If there is no dispute, a court will likely allow Swiss matrimonial property law to apply. In the case of a contentious divorce, however, this could lead to disputes.

The Solution: A Prenuptial Agreement

To avoid this kind of legal uncertainty, a choice-of-law clause in a prenuptial agreement is strongly recommended. Couples can agree that Swiss law will apply in the event of divorce, regardless of where they are living at the time of separation. This creates clarity, helps prevent lengthy international legal disputes, and makes divorce proceedings in Switzerland possible under a predictable legal framework.

Summary of the Key Points

• Every divorce in Switzerland requires a court judgment.
• Amicable settlements are reviewed by the court for fairness.
• If there is no agreement, a separation period of two years usually applies.
• In Switzerland, maintenance is independent of fault.
• If spouses live abroad or return from abroad, for example from Thailand, the applicable law should be secured through a marriage contract.

A divorce is emotionally difficult, but a clear understanding of the legal framework helps make fair and workable solutions for the future possible.