Divorce in France, application in Switzerland

Divorce in France, application in Switzerland

"My divorce decree, issued in France, does not settle the division of the occupational pension accumulated by my ex-husband in Switzerland.

Can I request a supplementary divorce before the Swiss courts?

Under Swiss law, the division of occupational pension assets is one of the ancillary effects that must be settled at the time of the divorce. The problem is that when a divorce is granted in France, the French judge cannot decide on the division of the occupational pension assets accumulated in Switzerland, since French law does not recognise such an institution. However, the French judge may take into account the occupational pension assets accumulated in Switzerland and, instead of dividing them, fix a compensatory allowance that one of the spouses must pay to the other. If the former spouse ordered to pay this compensation is unable to fulfil his or her obligation due to lack of sufficient means, he or she may then request the competent Swiss courts to order his or her pension fund to pay this compensation, by deduction from his or her occupational pension assets, after having had the French divorce decree recognised. In Geneva, this jurisdiction lies with the cantonal social insurance court.

If the foreign court does not award such compensation, the former spouses may also take action in Switzerland to obtain the division of the pension fund, by means of an action to supplement the divorce decree. Swiss law provides for a number of possible jurisdictions: firstly, the Swiss courts of the domicile of the defendant spouse or that of the plaintiff spouse, if the latter has been resident in Switzerland for one year or if he or she is Swiss. In addition, insofar as no legal action is brought before the foreign courts of the domicile of one of the spouses, the courts of the place of origin in Switzerland also have jurisdiction if the spouses are not domiciled in Switzerland and one of them has Swiss nationality.

In principle, the law applicable to an action to supplement a divorce decree is that of the divorce, except in particular as regards the name, the maintenance obligation between the spouses, the matrimonial property regime and the effects of filiation, which are regulated by the law independently. However, the court may apply another law with which the case has a much closer connection than the one designated by the law, in this case Swiss law. The judge decides this of his or her own motion, so there is no need to make a request to this effect. However, this exception must not be used to circumvent the result intended by the law.

This means that you can take action to supplement your French divorce decree before the Swiss authorities, by applying to the Geneva Court of First Instance, provided that you have been living in Switzerland for more than one year or that you are of Swiss nationality.