A friend of mine is in the process of getting divorce. He left their partner around 3 years ago but the partner was unemployed so she stayed on at his place (their former place) or his parents chalet in the mountains until she recently moved away to another Canton (she found a job).
He wants to file for divorce but is concerned about whether she can delay it further 2 years given that she financially benefits.
What constitutes a separation here in CH? I know for instance in Germany, you can even live under the same roof but should not sleep together or cook together (I know sounds silly).
I think she would have needed to move out 2 or more years ago for the Swiss courts to consider her living separately.
How is she benefitting from delaying it? Is he paying her money? If she has a job and earns enough to support herself no alimony would be granted I think.
Also are they EU or non-EU nationals? If she’s non-EU and has a job then once divorced her employer would need to apply for a new permit for her as she would fall under the non-EU hiring criteria which is bypassed by the family reunification permit she may have atm.
If you're not going straight to a divorce (ie one person wants to hold out) you first need an official, court approved, separation in 2 different addresses (you'll be considered single for tax and other purposes). The 'hold out' used to be up to 3 years, but I thought I read somewhere that it's now 2 years.
Thank you for the response. I know about the 2 year thing, but what does the court require as admissible separation? If a person breaks up and then they do not live under the same roof but are still on the same lease for instance, is that acceptable?
As far as I know (although I can't provide a link, sorry) any one of these suffices to be regarded as a non-separated couple: living under the same roof having a rental contract together, in both names one person having a sub-let contract from the other for the same home filing a joint tax declaration. Possibly also sharing a bank account.
In other words, the clock for the 2 years starts to tick once all of those have been separated.
You're right about no support and alimony unless, perhaps, there was a very big gap in their potential for earning or in their ages. It could also depend on the ages of the children, if any, i.e. if she needed to stay at home to care for them, then the courts consider it reasonably that he should support her, for a while, until the children are mainly at school and she could get at least a part-time job.
Upon divorce, each partner is entitled to half of the accumulated pot of the other's pension plan. Therefore, if he has been earning much more than she throughout their marriage, then with regard to the pension plan splitting she could benefit from delaying the divorce.
Please note this is not gender-specific: it is the same for either partner having earned more or having stayed at home (possibly to care for the children) more than the other.
Also there is no need to have a the separation court approved. Even more, if there is no disagreement about the separation the court will not even hear the case as there is nothing which has to be decided (except in case of pensioners, due to the AHV/OASI law).
The separation period must be continuous and uninterrupted. A spatial separation is preferred, but as far as I understand, the German model can also be applied. Separation does not mean no contact nor act like strangers.
The main (only) one of those that is most difficult to overcome is the living under the same roof; it makes it easy for the authorities if they can see a physical separation, and it makes it harder for you to prove you are living separate lives. You don't have to have a court-stamped separation, but you do need to tell your Gemeinde, then you will be taxed as a single person for the entire year in which you separate. You can probably do this under the same roof, but eyebrows will be raised. Contracts for the same home are less of an issue as it requires two signature to terminate a lease, and it's far from unheard-of for one party to deliberately withhold their signature to be difficult. A shared bank account isn't a problem because it's perfectly possible for non-related people to share a bank account. But you absolutely should make sure you have your own bank accounts (for so many reasons!) and run your life from that, not the joint one. Basically, especially if she didn't move out, you need to be able to demonstrate that you have indeed been living separate lives.