Author: Lawyer Enrico Germano
In the event of a divorce, which statistically affects two out of every five marriages in Switzerland, there are many aspects that the couple will have to settle, including the custody and maintenance contribution of minor children, as well as, for instance, the dissolution of the matrimonial regime, the effects on occupational retirement provision and the maintenance contribution to the former spouse and children.
The Swiss divorce Court only grants exclusive parental authority to one parent if it considers it necessary for the child’s welfare. As a rule, both parents exercise parental authority jointly. Parental authority is “the right and duty to make the necessary decisions concerning the child, to direct its care and upbringing, the right to determine its place of residence, to choose its religious upbringing (up to the age of 16) and to represent the child”. 1The Swiss Civil Code itself reminds us that “parental responsibility serves the best interests of the child” and that “until such time as they attain the age of majority, children remain the joint parental responsibility of their father and mother” (Art. 296 para. 1 and 2 CC).
Child custody, on the other hand, concerns the parents’ choice as to which of them their minor children shall live with. In the absence of agreement between the parents, it is the judge who decides on the custody of minor children, taking into consideration several criteria, defined both by law, including the child’s right to have regular personal relationships with both parents, and by case law. Young children are entrusted to the mother in most cases. The non-custodial spouse will be required to pay a monthly maintenance contribution, based on the needs of the children and the financial resources of both parents. The amount of the maintenance contribution is not final and may be changed if important and lasting changes in the obligor spouse’s financial situation become known. Unfortunately, it is often the case that the creditor spouse has to take legal action in order to obtain the payment of child maintenance.
Among other things, its non-payment may constitute a criminal offence, defined in Article 217 of the Swiss Criminal Code: “Any person who fails to fulfil his or her family law duties to provide maintenance or support although he or she has or could have the means to do so, shall be liable on complaint to a custodial sentence not exceeding three years or to a monetary penalty”.
The obligation to contribute to the maintenance of minor children lasts until they reach the age of majority or until they have completed their education. In Switzerland, in certain situations, each Canton may advance the child maintenance contribution if the debtor spouse does not pay the contributions set by the Court.