1. The matter of international jurisdiction
If you are a German citizen living in Switzerland, you often have the right to choose whether you want to divorce in Germany or in Switzerland.
According to the EU Regulation applicable, you can divorce in Germany, for example, either if you and your spouse are both German citizens or if you have already lived in Germany for some time since the separation. If you file for divorce, you must have been living in Germany again for one year if your spouse does not agree to a divorce. If both spouses agree, the petition can also be filed earlier.
You can always get a divorce in Switzerland regardless of nationality if you have your habitual residence in Switzerland, or if you both have Swiss nationality.
2. The matter of which divorce law to apply
So, once the question of international jurisdiction has been clarified and you have decided to file your divorce petition in Germany or Switzerland, you now have to clarify which law this court will apply.
The German court will not automaticly apply German law. It is also possible that a German court will have to apply Swiss law and, conversely, that a Swiss court will have to apply German law to a matter. This question must also be examined separately for the question of divorce law, i.e. according to which conditions you can be divorced in principle, and the question of clarification of the following matters of divorce: matrimonial property law, maintenance, pension equalisation and the law of parent and child. In this article I will limit myself only to the question of the applicable divorce law.
In Germany, according to the applicable EU Regulation, in cases where no prior choice of law has been made, divorce is governed by the law of the state in which the spouses have their habitual residence at the time the court is seised. In cases where you and your spouse live in Switzerland, this means Swiss law. It is always possible to choose German law beforehand by means of a consensual choice of law.
In Switzerland, divorce is always governed by Swiss law in accordance with the international private law applicable.
3. Which law is “better”?
Which law best suits your specific circumstances must always be examined on a case-by-case basis. In general, a divorce where both spouses are in agreement can usually be carried out more quickly and without complications in Switzerland. It is sufficient to work out a divorce agreement, also called a divorce convention, with a joint lawyer, in which you can settle all matters related to the divorce by mutual agreement. A notary is not required to sign the agreement. Your lawyer then submits the signed agreement to the competent Swiss court, which then examines and approves the agreement. In simple cases, it is not necessary for your lawyer to accompany you to the divorce hearing at the court. This can save costs, so that a divorce in Switzerland can even be cheaper than in Germany. Sometimes, however, it still makes sense to divorce in Germany. This is the case, for example, if both of you have acquired high pension entitlements in Germany during the marriage and would like these to be settled directly in the course of the divorce.
Are you looking for a specialist who will check in which country a divorce is best for you? With our two offices in Germany and Switzerland, we can provide you with extensive advice and representation in both countries. Please feel free to make an appointment for an first consultation in Constance, Zurich or online.