If both spouses do not agree on the divorce, they cannot initiate an amicable divorce procedure. According to Swiss law, a two-year separation period is necessary before a divorce procedure can be initiated in this case. During this period of separation, it may be necessary to take protective measures before the divorce is pronounced. These measures are known as the Protective Measures for the Conjugal Union (PMCU).
It is often preferable to opt for an amicable divorce procedure in most cases to expedite the process. It is easier to agree to find a solution together rather than engage in lengthy and costly legal procedures. In any situation of conflict between married persons, the interest and well-being of the children must be the priority. Therefore, parents will generally expect shared custody to meet the needs of their children in a balanced way.
Furthermore, it is essential that spouses remember they always have the option to seek help from marital counselors. These professionals can assist them in resolving their conflicts and finding alternative solutions to separation or divorce.
Drafting a separation agreement can be challenging when the marital situation is problematic, especially when one spouse leaves the family home without the intention of returning. In this scenario, the remaining spouse can request the intervention of a judge by submitting a petition. This petition allows the judge to make decisions on urgent matters, such as pronouncing the separation, determining child custody and visitation rights, and deciding on the fate of the family home.
It is strongly recommended to consult a lawyer before initiating any procedure with legal implications, including the protective measures for the conjugal union. Indeed, decisions made during these procedures can influence future proceedings, such as a unilateral divorce petition.
It is therefore crucial to clearly specify the request, as the divorce process can extend over several months or even years, and the implementation of measures may take more than two years. Moreover, decisions made concerning child custody, visitation rights, and allocation of the family home are rarely changed once they have been made.
During a divorce process, spouses may find themselves in a deadlock for various reasons, such as disagreements about the necessity of the divorce itself, leading to a refusal by one or both spouses. In such cases, a period of separation may lead to the implementation of protective measures to maintain the conjugal union.
In these situations, it is important to implement protective measures to resolve issues that may arise during this period. These measures can aim to find solutions on key elements such as parental authority and child custody, financial contributions, and allocation of housing and furniture. Resolving these issues is crucial to protect the interests of each party, especially the children.
Protective measures can be requested from the court of the domicile of one of the spouses, either unilaterally or by mutual agreement between the spouses. The procedure is written but does not require any specific form. A simple letter is sufficient to request one or more protective measures listed in Articles 172 to 180 of the Swiss Civil Code.
The competent judge can hear the future ex-spouses and attempt to reach an agreement during a hearing. In some situations, the children may also be heard. However, the right to be heard can be bypassed by superprovisional measures. These are established by the competent court when urgent circumstances justify them.
The protective measures for the conjugal union (PMCU) have been established primarily to address issues related to the impacts of divorce on the lives of spouses even before the pronouncement of their divorce. The purpose of these measures is to preserve the conjugal union and ensure its maintenance. They come into play when both spouses are confronted with disputes or circumstances that prevent amicable divorce, particularly when one of the spouses contests the principle or agreements of the divorce.
The judge can take these measures well before the start of the divorce procedure if deemed necessary. If no request for modification or unilateral divorce is submitted, these measures remain in force throughout the divorce period.
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