Difference between a non-mutual consent divorce and a mutual consent divorce with partial agreement
First and foremost, it is essential to highlight the fundamental distinction between a unilateral divorce petition and a mutual consent divorce with partial agreement. In a non-mutual consent divorce, one of the spouses initiates a unilateral procedure when the other does not agree to divorce, implying a disagreement on the very principle of divorce. Conversely, if the spouses agree to divorce but cannot agree on the terms of the divorce, particularly the ancillary effects of divorce such as child custody or alimony, it is a mutual consent divorce with partial agreement.
To determine the appropriate procedure, the first question to ask is: do you agree or disagree on the principle of divorce? If you agree, you can opt for an amicable divorce with complete or partial agreement. If you do not agree on the very principle of the divorce, you must initiate a unilateral divorce procedure.
Conditions to initiate a unilateral divorce procedure
Thus, unilateral divorce (Art. 114 et seq. CC) in Switzerland is a legal procedure allowing one of the spouses to request a divorce without the consent of the other spouse. This procedure is often considered the most contentious of the different divorce procedures.
To initiate a unilateral divorce procedure, it is imperative that one of the following two conditions be met: either the spouses have been separated and have not cohabited for at least two years, or the continuation of the marriage has become unbearable for one of the two spouses. If neither of these conditions is met, any divorce petition will be rejected by the competent court. If you are in this situation and need to wait two years before you can initiate a divorce procedure, you may need or want to establish certain rules with your future ex-spouse regarding essential subjects such as child custody during separation, maintenance contributions, or allocation of the family home during this period. In this case, you can use protective measures of the marital union (MPUC), which allow you to obtain from the judge the establishment of clear rules for this transition period.
The protective measures of the marital union (Art. 171-179 CC) are a set of judicial or extrajudicial measures intended to protect spouses when they are in the process of divorce or legal separation.
Three principles govern these measures. The first principle is that the initiative must come from one or both spouses. Indeed, one of the spouses or both must make a request to the judge to obtain these protective measures. The latter cannot intervene on his own.
The second principle provides that the law favors recourse to counseling and mediation (Art. 171 CC) before resorting to coercive measures pronounced by the judge. For this, offices of marital consultation are available to spouses. They are then helped and advised by psychologists and social workers. However, this is not a mandatory condition, it is an extrajudicial measure. The purpose of such mediation is to try to overcome the difficulties spouses encounter in their daily lives. The idea is to reach an agreement.
The third principle is that protective measures are exhaustive, but they do not limit the possibility for spouses to resort to other means of protection, such as criminal law.
On the contrary, if you meet one of the two conditions listed above, you can initiate a unilateral divorce procedure. This begins with the filing of a divorce petition with the competent court. The petition must contain the reasons justifying the divorce request, as well as proposals for settling the ancillary effects of the divorce. These ancillary effects include child custody, alimony, property division, etc.
The spouse who did not request the divorce can respond to the divorce petition by contesting the reasons cited or by proposing modifications to the proposals for settling the ancillary effects of the divorce. If there is a dispute, the court will summon both parties for a conciliation hearing to try to find an agreement on the contentious points. If the parties reach an agreement, it will be ratified by the judge and become enforceable. If the parties do not reach an agreement, the court will decide on the contentious points and issue a divorce judgment.
In the case of a unilateral divorce petition, the petitioning spouse must prove the reasons cited to justify the divorce request. If the court finds that the reasons cited are not sufficient to justify a divorce, the petition will be rejected. In the case where the divorce is granted, the court will pronounce the divorce judgment and set the ancillary effects of the divorce, taking into account the proposals of both parties.
It is important to note that unilateral divorce can be a lengthy and costly procedure, especially if the parties cannot reach an agreement on contentious points. Moreover, this procedure can be very emotionally difficult for both parties, particularly for children.
In conclusion, unilateral divorce in Switzerland is a complex legal procedure that must be undertaken with caution. The parties involved must be aware of the potential emotional and financial consequences of this procedure and should seek to resolve their differences amicably if possible.