Divorce: is my application admissible here?

Divorce: is my application admissible here?

"I got married 6 years ago in Geneva and now I want a divorce. I am Spanish and my wife is German. We've lived in Geneva since we got married. However, I've learned that my wife is planning to move to Germany in the near future. Given our foreign nationality, I'd like to know whether I can still file for divorce in Geneva. Will Swiss law apply?

Diego, Puplinges

From a Swiss point of view, since you and your wife are foreign nationals, it is the Federal Act on Private International Law (LDIP) that governs the jurisdiction of the authorities and the law applicable to your divorce. Divorce is specifically excluded from the scope of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters in International Disputes, to which Switzerland, Spain and Germany are contracting parties.

Generally speaking, art. 2 of the LDIP provides that the Swiss judicial or administrative authorities of the defendant's domicile have jurisdiction, unless special provisions are made in this law. With regard more specifically to the effects of the marriage, according to article 46 LDIP, the Swiss judicial or administrative authorities of the domicile or, in the absence of a domicile, those of the habitual residence of one of the spouses have jurisdiction to hear actions or order measures relating to the effects of the marriage. In your case, as the former marital home is in Geneva, the Geneva courts have jurisdiction, i.e. the Civil Court of First Instance, even if you are the plaintiff in the proceedings.

With regard to the applicable law, article 48 of the LDIP provides that the effects of marriage are governed by the law of the State in which the spouses are domiciled. Where the spouses are not domiciled in the same State, the effects of the marriage are governed by the law of the State of domicile with which the case has the closest connection. In your case, as long as the marriage was celebrated in Geneva and you have always lived there during the time you lived together, its effects will be governed by Swiss law, even if your wife has already left Switzerland and is domiciled in Germany at the time you submit your application.

It follows from the foregoing that, notwithstanding your foreign nationalities, the Geneva judicial authorities will declare themselves competent if you wish to file for divorce in Geneva and that they will decide your respective claims in accordance with Swiss law.