Married in France, divorced in Switzerland?

Married in France, divorced in Switzerland?

"I married a Tunisian in France. Now, for the last 3 years, my husband has been living in Switzerland and I in neighbouring France. I have health problems. My husband has filed for divorce in Switzerland. Could he file his petition in Switzerland? Do I have to go to court in Switzerland? Can I claim half of his occupational pension fund?

F. France

The fact that a marriage is celebrated in France is not decisive as to the jurisdiction of the Swiss authorities in divorce matters insofar as, according to the rules of Swiss private international law, the Swiss courts of the applicant spouse's place of residence have jurisdiction, particularly if the applicant has been resident in Switzerland for one year. As this condition is met, your husband can indeed apply to a Swiss court.

With regard to the obligation to attend court, for divorce proceedings, article 278 of the Code of Civil Procedure provides that the parties must appear in person at hearings, unless the court exempts them on the grounds of their state of health, age or any other just cause.

Exemptions from appearance on "other just grounds" are granted restrictively, for example when personal appearance is impossible or disproportionate. For example, the fact of living in neighbouring France is not, on its own, sufficient grounds for obtaining such an exemption. However, the Tribunal has broad discretionary powers and will take into account not only the characteristics of the hearing in question but also your personal circumstances, such as your state of health. Under Swiss law, it is no longer possible to have one of the spouses forcibly brought to court to be heard. If you fail to appear without obtaining a dispensation, the rules on default will apply. The proceedings will then run their course despite your absence and the Court will hand down a decision without you having been able to put forward your claims on the liquidation of the matrimonial property regime or on the terms of the division of occupational pension assets. With regard to these benefits, the Civil Code provides as a general rule that the assets accumulated by each of the spouses during the marriage are to be divided in half, unless the court is convinced that this division is unfair or that one of the spouses has already suffered a pension claim. Retirement or invalidity are contingencies that will involve the payment of an equitable indemnity instead of the division of the capital by half.