Unilateral divorce

Difference between a non-mutual consent divorce and a partial agreement mutual consent divorce

It is very important to highlight a fundamental difference between a unilateral divorce petition and a mutual consent divorce with partial agreement. A non-mutual consent divorce is a unilateral procedure initiated by one spouse when the other spouse does not agree to divorce. This situation represents a disagreement on the very principle of divorce. However, when spouses agree to divorce but cannot agree on the modalities of the divorce—known as the ancillary effects of the divorce, such as child custody or alimony—it is then referred to as a mutual consent divorce with partial agreement. The first question to ask in order to determine the procedure to follow is whether you agree on the principle of divorce. If so, you are dealing with either a complete or partial agreement amicable divorce. If you do not agree on the principle of the divorce itself, you must initiate a unilateral divorce petition.

Conditions for initiating a unilateral divorce procedure in Switzerland

A divorce procedure without agreement between the spouses can only be initiated if one of the following conditions is met:

• the spouses have been separated and not cohabitating for at least 2 years, or
• the continuation of the marriage becomes unbearable for one of the spouses.

As long as one of these conditions is not met, any divorce petition to the competent court will be dismissed.

Therefore, if you must wait 2 years before initiating a divorce procedure, you might need or want to establish certain rules regarding, for example, the custody of the children during the two-year separation, maintenance contributions, or the allocation of the family home during the separation. In this case, protective measures of the marital union (MPUC) will allow you to obtain a judge’s decision on the rules of engagement.