Mutual consent divorce

In Switzerland, the most popular method of divorce is by mutual agreement. This option seems to be favored due to the reduction in time and costs for couples wishing to separate. Indeed, the unilateral divorce procedure is not only lengthy but also expensive. Mutual consent divorce is often the result of an agreement between spouses to end their marriage. However, it is important to verify if both parties are completely in agreement on all the details related to the divorce. The law governing divorce in Switzerland is the Swiss Civil Code (CC), specifically Articles 111 and following. These articles define the substantive and formal conditions for the dissolution of marriage, as well as the effects of divorce on the relationship between spouses and their children. Swiss cantons also have family law statutes that may be applicable in the context of a divorce, particularly regarding child custody and property division. 

Advantages of an amicable divorce process

Divorce on joint petition (Art. 111 CC) is a mechanism for breaking the marital regime in which spouses decide and approve most, if not all, of the procedure and modalities. With the possible help of a jointly appointed lawyer, both parties decide together how they will share and liquidate their assets, including the apartment, house, car, bank accounts, and the allocation of the family home. They also discuss the distribution of their assets within the framework of the occupational pension plan (LPP), as well as alimony and the custody of their child(ren).
Due to its simplicity, mutual consent divorce presents an undeniable advantage. Indeed, resorting to mutual consent divorce avoids opening a litigation procedure, setting up protective measures for the marital union (MPUC), holding confrontation hearings, and the intervention of external experts.
The simplicity of mutual consent divorce also translates into savings, particularly in terms of attorney fees. In the case of total or even partial consent, spouses can even start the amicable divorce procedure without the help of a lawyer, by completing a model divorce agreement and petition to the court.
Finally, one of the major advantages of mutual consent divorce is that it is not necessary to observe a two-year separation period before starting the procedure. Indeed, this condition is only required in the case of a unilateral divorce (Art. 114-115 CC), when both spouses do not agree on the principle of separation. If both parties consent to the divorce, this separation period is not mandatory.

Amicable divorce with full agreement

In an amicable divorce, it is the spouses who agree on the terms of their separation. In this context, they can agree on all the modalities of the divorce, which constitutes an amicable divorce with a full agreement.
The modalities of the divorce generally include the following elements enumerated above: the mode of custody of the children, the allocation of the family home to one of the spouses, the liquidation of common assets such as bank accounts, the LPP, the car, real estate, furniture, etc., as well as the determination of the amount of alimony awarded to one of the two spouses.
These modalities represent the ancillary effects of the divorce. They are gathered in a divorce agreement submitted to the court for ratification in a joint divorce petition. However, if the spouses fail to agree on some of these points, but still agree on the fact of divorcing, this constitutes an amicable divorce with partial agreement.

Amicable divorce with partial agreement

Mutual consent divorce with partial agreement (Art. 112 CC), as mentioned above, occurs when ex-spouses agree on the fact of divorcing but fail to agree on certain ancillary effects of the divorce, such as the amount of alimony, the allocation of the family home, or the custody arrangements for the children. In this situation, the judge will be called upon to decide on the modalities in question. To do this, he will base his decision on the divorce agreement and the divorce petition presented by the spouses, as well as on possible hearings and expert opinions, if necessary.
In summary, mutual consent divorce is a very advantageous option for couples wishing to end their marriage quickly and economically. Thanks to this method, spouses can decide together on all the modalities of their separation, thus avoiding the opening of a litigation procedure and the associated costs. However, it is important to note that both parties must be entirely in agreement on all the details related to the divorce for this option to work effectively. In the event of partial disagreement, it is still possible to initiate the mutual consent divorce procedure, but the judge will then have to decide on the modalities in question.

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