The right to a pension is increasingly restrictive in the event of divorce – rts.ch

The case law of the Federal Supreme Court now focuses more on the duty of financial autonomy of the two parties in the event of a separation. Its latest decisions on the matter are more faithful to the principle anchored in the divorce law since the year 2000.

According to the decisions of the Federal Court, the right to a pension becomes more and more restrictive after a divorce.

Thus, for example, giving up one’s financial autonomy during marriage to take care of a child no longer necessarily entitles the former spouse to pay a pension once the divorce has been pronounced. This decision joins others in the High Court in a recent Federal Court ruling.

This principle, called “Clean Break”, has been anchored in the divorce law since 2000. It requires husbands and wives to each provide their own financial support after the divorce.

>> Read also: The right to a pension will be more restrictive for divorced women

In the name of gender equality

In fact, this principle has never been applied literally. But the Federal Court, through a whole series of judgments, now wants to reaffirm the spirit of the law in the name of equality between men and women.

To this end, the judges in particular abolished the rule which until now exempted cohabitants over the age of 45 from finding work after divorce if they had not exercised a professional activity during their marriage.

Everyone must be able to work

In general, the new jurisprudence is based on the idea that everyone should be able to work after a separation, provided there are no major obstacles.

The recent ruling goes in the same direction: the Federal Court found that Madame was sufficiently prepared to find a job quickly, despite having dedicated herself to her family during her marriage.

The ex-wives much more affected

Women are more affected than men by this new jurisprudence. This is especially true for those who have stopped working or drastically reduced their working hours to take on family responsibilities. It is therefore they who, at the time of divorce, are forced more often than before to find a job quickly.

But more generally, the new jurisprudence is based on a model of an egalitarian society in which men and women remain financially independent, married or not. The intention may seem laudable, but in Switzerland the classic model is still very widespread: in the vast majority of cases, the man works 100% and the woman part-time.

“The law somehow preceded customs”

Attorney Anne Reiser is not surprised by this jurisprudential development. “It’s been 22 years since the civil code changed, 22 years since we should have had these laws on jurisprudence”, she reacted on Tuesday in La Matinale de la RTS. “But the social body did not really follow and the law preceded customs a bit,” she added.

“What the Federal Court states in several judgments is that marriage is a contract,” said this family law specialist. “It is necessary to see, in the agreements that have been signed, the consequences that these agreements can have on financial autonomy. And if there is, then it is a question of compensating for it (…) It is a question of seeing what specific impact it has had on situations specifications “.

“Go your own way,” says the Federal Court

Anne Reiser reminds us that, in this liberal state that is Switzerland, we are free to choose. «The Federal Supreme Court tells you a little ‘démerden-Sie sich’. You have to deal with facilities or lack of facilities, support or lack of support, often with grandparents who are also active and cannot lend a hand that much. “

Nothing prevents us from getting on, on the contrary, but “we must be a little more creative”, the lawyer believes, “because we cannot necessarily count on a certain solidarity social structure in favor of families”.

>> Interview with Anne Reiser on La Matinale:

Anne Reiser analyzes the federal court ruling that threatens to preteritize women after divorce / La Matinale / 8 min. / today at 07:17

Céline Fontannaz / oang

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