Divorce
If the spouses agree on a divorce, the divorce is on joint request, if they do not agree, the separation period or other conditions must be met.
1 Divorce
1.1 Principle
If the spouses agree on a divorce, the divorce takes place on joint request. There is a comprehensive agreement on the subsequent effects of the divorce:
- comprehensive agreement (CC 111)
- partial agreement (CC 112)
1.2 Comprehensive agreement
All subsequent effects are regulated in a divorce agreement (so-called divorce convention). The divorce agreement must be submitted to the court, which examines the divorce agreement for completeness and appropriateness and approves it.
The subsequent effects to be settled are:
- Allocation of the marital home
- Matters relating to the child (custody, visitation rights, alimony)
- Post-marital maintenance
- Pension fund (division of pension fund assets accumulated during the marriage)
- Marital property regime
Procedure in the event of a comprehensive agreement:
Negotiation of a divorce convention by the spouses, their attorneys, or with the assistance of a mediator. The divorce agreement is a contract in which both spouses state their intention to divorce and comprehensively regulate the consequences of the divorce. The divorce agreement requires court approval in order to be valid. Once approved by the court, the divorce agreement becomes part of the divorce decree.
Initiation of the divorce proceedings by submitting the following documents to the competent court:
- Jointly signed petition for divorce / Jointly signed divorce agreement.
- documents and evidence of the personal and financial circumstances of both spouses
- Family record book or certificate in the case of foreigners
- Proof of income
- Wage statements in the case of employees
- Bookkeeping for self-employed persons
- Tax returns incl. supporting documents
- In the case of tenancy: tenancy agreement
- Receipts for monthly recurring costs (for calculation of needs)
- Pension fund statements
Court hearing
- Examination of the well-considered and uninfluenced will/decision to divorce (agreement on the divorce issue)
- Examination of the divorce agreement
- Possibly: second hearing in court (confirmation of the will to divorce)
- Approval of the divorce agreement by the divorce court. Approval occurs when the judge is persuaded that the spouses entered into the agreement with free will and after careful reflection (CC 111).
- Divorce decree (incorporation of the divorce agreement in the decree)
1.3 Procedure for partial agreement
In the case of a partial agreement, the spouses conclude a divorce agreement on the points on which they agree (partial agreement). The points on which they cannot agree are the subject of proceedings before the competent court. The divorce court makes a decision on the disputed subsequent effects.
The proceedings are initiated in the same way as in the procedure with a compprehensive agreement, by filing a partial agreement with the court. In addition, a declaration is filed with the court that the court should rule on the disputed divorce consequences. This is followed by a summons to the 1st hearing, at which the court, on the one hand, attempts to conduct settlement discussions between the parties and, on the other hand, obtains from the parties confirmation of the will to divorce, confirmation of the partial agreement and a declaration regarding the disputed issues.
If the spouses confirm their will to divorce, but the subsequent effects of the divorce remain in dispute (in whole or in part), the proceedings shall be continued adversarially with respect to these consequences of the divorce (statement of grounds, response, reply, rejoinder; main proceedings and evidentiary procedure).
The court may distribute the roles of the parties. As a rule, the court again attempts to reach an agreement during an instruction and settlement hearing. If no agreement is reached, the divorce court decides on the disputed issues. The divorce proceedings are terminated by the issuance of a decision on the divorce and its subsequent effects. There is a possibility of filing an appeal if a party does not agree with the ruling.
2. divorce after expiry of the separation period
If the spouses do not agree on the issue of divorce and have been living separately for at least two years, the party seeking divorce must initiate contentious divorce proceedings by filing a petition for divorce (CC 114). The prerequisites for filing an action are
- no agreement on the divorce issue (and the subsequent effects of the divorce)
- uninterrupted judicial or de facto separation of two years
- The spouse who wishes to divorce files a petition for divorce with the competent court. The other spouse is then given the opportunity to respond to the petition for divorce.
- The court summons the parties to a settlement hearing and clarifies whether the ground for divorce is given. If the ground for divorce is established, the court attempts to reach an agreement between the spouses on the divorce consequences and thus an amicable solution between the parties.
- During the main hearing, the parties have to substantiate their legal claims (statement of grounds/answer) and the relevant evidence has to be presented. The main hearing ends with the court's judgment.