I've recently separated from my husband and we aren't divorced ... yet. We are both Australians and got married in Australia, but naturally, we told the kreis-buero (local council for zurich quartier) when we got back here after the wedding, of our new status and were promptly registered as married.
I just went to get the divorce form and the lady at my new kreis-buero (I've moved out) assured me that we could divorce in CH as we're both residents. I hope this is right? I trust that the Australian authorities will recognise it. I hope...
My next question is regarding child paternity. I wasn't going to push for a divorce soon and let the embers cool down a bit between us, but a swiss friend brought up the fact that if I were to get pregnant, my (ex) husband will be the official father of the child and the kid will carry his name. Is this right? Even if we're not Swiss??
I was under the impression that if I were to have a child, the child would not be swiss and I would then have to register it with the australian embassy for an australian birth cert. So with this - would this paternity rule still apply?
I would just like to know what my options are if my husband decides to go back to australia before the divorce. To divorce from there, I know that we would have to be separated for at least two years and well ... age is catching up... I'd like to leave my options open for later.
2.) Children born in wedlock are assumed to be that of the husband who has 5 years to dispute paternity
2.1) Whose name it carries is a question of the law of the country it is born in - I mean you can't really be married, walk into a hospital, have a baby and register it as "father unknown", can you?
3.) Institute proceedings in Switzerland and the Australian courts shouldn't touch it after that. Amicable divorces are fast here. If you have to force him to divorce then you have to wait the two years, still, instituting proceedings in this country should cover you.
it seems the bottleneck in the process is the estranged husband; is he keen to formalise the split or is he holding on just in case? How long are you separated and did you formalise the separation?
Formalise the separation? We live separately. No one's mentioned anything about formalizing a separation. When I rang the tax office, the lady there said that the moment we have different addresses, we start paying taxes separately. Is there some form to fill?
It's more the case that he might decide to return to Australia and if he does, then it'll be min 2 years before we're officially through. Emotions are still quite raw so ideally I'd like to wait for things to "calm down".
I guess it doesn't really matter in some ways, there will never be a "good time".
If the separation is documented it can be more effectively measured. My sister was wise enough to do this and her two years is nearly up - and then comes easier divorce (UK).
You could likely use the change of address for this - but the only way you can move forwards is to grab the bull by the horns. Is your other half considering returning home soon?
You have to think of the aspects of inheritance law, you can't disinherit a child just because you want him to be from your lover (paternity, famously, being a matter of opinion)
Sign a formal seperation document, it also regulates the alimony and it opens the case under swiss law.
I would also strongly suggest you get yourself a lawyer - it will make understanding the rules that much easier, and will prevent mega problems.
Yes, separation can be formalized, and it is one step closer to the divorce. It is often a good idea, unless you have a solid trust in your ex.
Also, one asks for divorce in the country of residence, and the law applying is the law of that country. wherever the process is initiated, that will be the jurisdiction, and changing it after is not really a good idea (slows down the process tremendously, if doable at all). You could wait to be resident in Australia to ask, of course, but in that case DO NOT start filing here.
It is a fact that a child born during a marriage usually has the last name of the father. If you expect or think you will be expecting before finalization of the divorce, that is one more reason to officialize the separation.
I'm not too keen on getting a lawyer at this stage and I do trust my ex in the sense that things will be fairly done. Getting a lawyer will also not help the situation as he hates them. Not to mention the question of cost.
To be honest, I don't know if I'll get pregnant any time soon. It's more to consider the options if he does decide to return to Australia. He is considering it but AFAIK hasn't decided to go or stay. I guess even if he decides to go back, it will be months before the actual move can take place.
I really don't know anything about what's going on with him as he stopped all communication months ago. So I'm just trying to cover my options. I was actually all relaxed about this until this swiss friend pointed out that I should consider the possibility of having children while I can and so having to wait 2 years for a divorce is not a good thing. The thought of having a child and not being able to specify the father didn't quite sit well with me.
I guess the smartest thing to do would be to start the divorce proceedings asap. I was just hoping that perhaps I could let things cool down a bit for him. Avoid adding salt to a fresh wound.
Maybe I'll start to do a search on the forum to see if anyone's written about the actual process that one goes through for a divorce. I did read somewhere that it's not necessary to have a lawyer for a simple, clear-cut case. And if we are both our normal selves and rational, it will be clear-cut. Which is why I was quite happy to wait a bit before this question of paternity cropped up. It seemed then that I had more to gain by waiting.
it's generally a bad idea not to retain a lawyer. At the very least they will be useful to work out a negotiation strategy which you can then follow without the lawyer with your ex if you wish.
Regarding the paternity issue, I would say that the laws hasn't caught up with reality yet. I believe that it is standard practice these days to use DNA testing whenever a paternity case is disputed and thus, would superseed the law which is there to deal with situations when paternity isn't 100% confirmable.
So I wouldn't worry too much about the paternity issue.
We don't need to negotiate. We kept everything separate during the marriage, so it's pretty clear what is mine, what is his and what is common which can be divided. We don't really have that much, nothing inherited.
Yes but you have to disprove that the child isn't from the husband. That's a hell of a lot of effort you could save if you did the paperwork in time.
If you are uneassy about approaching him for divorce then there is scope for negotiation - get a laywer. A consultation with a good one will cost about 350 and the whole thing, if he just checks the documents aroung 1K
To start the separation process, if no material/ monetary is to be fought over then a Güterstand die Gütertrennungs can be signed in front of a Notary. You may need a lawyer to draw up a draft which will cost with Notary fees +/- 2k fr. I would look to see if there is a local Frauenzentral which will help keep the costs down. After this is sign there is a 2 year wait to file the divorce. If both parties agree, the divorce can be started earlier. Keep in mind if you are under your husband's Aufenhaltbewilligung, they could possibly revoke it.
If you need a lawyer, I can recommend Frau Hanulik (01.340.2922)- she speaks English.
As for having a child while the divorce is still processing, the child will have your husband's last name. Your husband would have to write the courts saying it's not his child and you would need to get in touch with the local Vormannschaftsbehorder/in to represent your child in court. I've been through this process here in Zug and it was 15 minutes in front of the judge and cost 800 fr. Once the papers from the court are processed, then you can go to the Zivilstandsamt and your 'partner' can claim paternity. If your partner is Swiss, then your child has the right to the pretty red passport plus the Aussie pass. The last name will still be the same as your soon to be ex hubby's and can only be changed once you have remarried.
Sorry that I wrote a novel, but been there, done that.