In cases of disagreement between the spouses, an amicable divorce procedure cannot be initiated. In such cases, the law requires the spouses to observe a two-year separation period. This period of separation may necessitate measures to be taken before the divorce is finalized.
Case of mutual consent separation
In most cases, to expedite any procedure, the simplest solution is to adopt an amicable approach. It is easier to agree on a solution together than to engage in judicial proceedings that can last for years and can also be costly. In a matter involving two married individuals, the interest and well-being of the children must be the priority; therefore, parents should expect a shared custody arrangement to best meet their children’s needs. Furthermore, they must remember that they can always seek the help of marital counselors to help resolve their conflict and find solutions other than separation or divorce.
Case of non-consent separation
There are instances where the couple’s situation does not allow for a separation agreement. This often happens when one of the parents leaves the family home and abandons the family. In this case, the remaining spouse may submit a request to the judge to decide on urgent matters such as pronouncing the separation. Additionally, the judge will also decide on the fate of the family home, custody, and visitation rights.
Procedure for initiating a request for protective measures for the conjugal union (PMCU)
As with any case involving legal consequences, it is advisable to seek legal counsel before proceeding. The decisions resulting from the protective measures for the conjugal union can influence future procedures, such as a unilateral divorce petition. It is important to clearly define your request, as the divorce process, which can sometimes take months or even years, may see the application of these measures extend beyond 2 years. Lastly, it is rare for issues resolved under these measures to be altered, such as the allocation of child custody and visitation rights or the allocation of the family home.
Duration of application of protective measures for the conjugal union
In a divorce procedure, it is possible for the two future ex-spouses to reach an impasse. This can be due to various reasons, such as disputes over the very principle of the divorce leading to a refusal. In such situations, a period of separation may sometimes necessitate protective measures for the conjugal union.
Protective Measures for the Conjugal Union
These measures aim to resolve issues that arise from the long-term separation of the two parents. They seek to find solutions regarding the following elements:
- parental authority and child custody;
- financial contributions; and
- allocation of housing and furnishings.
The Procedure Measures can be requested from the court in the domicile of one of the spouses, either unilaterally or by mutual agreement. This is a written procedure that does not require any particular form—a simple letter is sufficient to request one or more of the measures listed in articles 172 to 180 of the Swiss Civil Code. The competent judge sets a hearing to listen to the parties and attempt to reach an agreement. In some cases, children may also be heard. Superprovisional measures can also be decided by the competent court, without respecting the right to be heard, when an urgent situation justifies it.
Importance and necessity of Protective Measures for the Conjugal Union
The protective measures for the conjugal union – PMCU – were primarily established to provide solutions to issues related to the impacts of divorce on the spouses’ lives before the divorce is pronounced. These measures aim to safeguard the marital union and ensure its maintenance. They come into play when the two spouses face disputes, or events or situations that prevent an amicable divorce, such as when one of the spouses contests the principle and agreements of the divorce. These measures can be taken well before the divorce procedure if the judge deems them necessary. In the absence of a modification request or a unilateral divorce petition, and throughout the divorce period, these measures will remain in effect.
