After a divorce, it is expected that the spouses will independently provide for their own needs and thus achieve financial independence as much as possible. However, marriage can have a significant impact, especially when there has been an unequal distribution of tasks during the marriage, such as when one spouse stops working to take care of the household and children. In such a case, after the divorce, this spouse may find themselves destitute and may have difficulty re-entering the workforce.
To mitigate these disadvantages as much as possible, the other spouse will provide maintenance support for a limited period. Indeed, Article 125, Paragraph 1 of the Civil Code (CC) states that the other spouse must provide fair maintenance support to help the disadvantaged spouse regain stability and facilitate the return to gainful employment in due course. The key element for obtaining this support is that the marriage must have concretely and durably influenced the financial situation of the spouse.
The contribution can be established by the spouses through an agreement, which must then be ratified by a judge (Article 279 CPC). If there is no agreement, it is up to the judge to determine it.
The judge assesses the appropriateness of granting maintenance and, if necessary, determines the amount and duration. To do this, the judge relies on various criteria listed in Article 125, Paragraph 2 CC (non-exhaustive list):
the division of tasks during the marriage,
the duration of the marriage,
the standard of living of the spouses during the marriage,
the age and health condition of the spouses,
the income and assets of the spouses,
the extent and duration of child care that must be provided,
the professional training and earning prospects of the spouses, as well as the probable cost of the beneficiary's professional reintegration,
the expectations of old-age and survivors' insurance and occupational or other forms of private or public pension, including the foreseeable result of the division of exit benefits.
Regarding the determination of this pension, the judge proceeds in three stages (TF 5A_67/2020 and ATF 137 III 102):
The judge begins by determining the appropriate maintenance for the spouse after establishing the standard of living of the spouses during the marriage (which will constitute the maximum amount of the future pension). Generally, the lower limit is considered to be slightly above the subsistence minimum.
Then, the judge examines the ability of each spouse to finance themselves, temporarily or permanently.
Finally, if this is not possible, the judge determines the contributory capacity of the other spouse and thus sets a "fair" contribution based on all these elements. To do this, the courts broadly apply the expanded subsistence minimum method with the distribution of the surplus. This method is used particularly in cases where the spouses spent all their income or, in general, were unable to save during the marriage. By this method, the incomes (if there are several) are added together, the expenses of both spouses are deducted, and then the surplus is shared between the two spouses. The expanded subsistence minimum includes the subsistence minimum of enforcement law. However, in a favorable financial situation, where the additional costs associated with maintaining two separate households are covered, it is necessary to use the method based on the indispensable expenses for maintaining the standard of living during the joint life, and the judge will therefore consider their actual expenses.
It should also be noted that if the situation of the debtor or the creditor changes significantly and permanently, the pension may be reduced, terminated, or suspended for a determined period (Article 129 CC). The contribution ceases in the event of remarriage unless otherwise agreed (Article 130 CC).
If you would like more information on this subject, the Valentin Legal Consultation will be happy to welcome you at its premises located at rue du Valentin 1, 1004 Lausanne, to provide you with more complete answers. We are also reachable by phone at 021 351 30 00 and by email at info@cjdv.ch.
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