Legal separation as a form of separation

Legal separation as a form of separation

 "My wife and I can't get divorced for religious reasons, but we still want to separate. Is it possible in Switzerland to settle things before a judge without getting a divorce? I've heard that it is, but no one has really been able to help me. " Ludovic, Vernier

In addition to divorce, Swiss law also provides for "legal separation". This institution, which is rarely used today, was originally intended for people who wanted to live apart with the same effects as divorce, while remaining married. This choice was often dictated by the desire to observe, as you do, certain religious principles, but also by the desire to respect the rules of the country of origin of one of the spouses prohibiting divorce.

Under article 117 of the Civil Code (CC), legal separation is applicable under the same conditions as divorce and the provisions on divorce proceedings apply by analogy. In the same way as for divorce, legal separation may be initiated by joint petition or unilaterally. Where there is no mutual consent, a spouse may only apply for legal separation if he or she has lived separate and apart from his or her spouse for at least two years (art. 114 CC). An application for legal separation may also be made where there are serious reasons for which the applicant spouse is not responsible that make the continuation of the marriage unbearable (art. 115 CC).

The effects of legal separation are for the most part identical to those of divorce since, as specified in art. 118 CC, legal separation automatically entails the separation of property, i.e. the liquidation of the matrimonial property regime. Occupational pension provision (LPP) is also shared between the two spouses.

The main difference between legal separation and divorce is that the spouses remain officially married and are therefore unable to remarry. In 2010, legal separation accounted for less than 1% of divorce proceedings in Switzerland, but remains an alternative available to couples considering separation. However, people who are unwilling or unable to divorce are much more likely to opt for another institution under Swiss law to settle their separation judicially: measures to protect the marital union (MPUC) under articles 172 et seq CC. It should be noted, however, that these measures are less incisive than legal separation, as they do not automatically result in the liquidation of the matrimonial property regime or the division of occupational pension provision.