When difficulties arise in a couple's life, one or both spouses may approach a judge to request measures provided by law. Some measures can only be ordered during the marriage (e.g., financial contributions (Article 173 CC) or withdrawal of the power to represent the marital union (Article 174 CC)), while others will only be ordered in the event of the suspension of marital life (e.g., organization of separate living arrangements (Article 176 CC) or restriction of the power of disposition (Article 178 CC)). These measures are called protective measures for the marital union.
The protective measures ordered by the judge can be modified in case of a change in circumstances (Article 179, para. 1 CC). This requires that the factual circumstances have changed significantly and durably, or that the judge based their decision on facts that have proven to be false or did not occur as expected, or that the judge was not aware of important facts.
Regarding jurisdiction, it is at the domicile of one of the parties (Article 23 CPC). Additionally, it should be noted that only spouses who have not yet filed for divorce can request protective measures.
For protective measures aimed at organizing separate living arrangements (Article 176 CC), the applicant must allege and substantiate various elements.
First, they must state that they are married. They must then explain that the common life is suspended or needs to be suspended. Furthermore, they must allege that there is a serious threat to their personality, material security, or the well-being of the family. These concepts should be interpreted broadly. In practice, judges accept requests for protective measures when the separation is definitive, viewing it as a way to protect the spouses' personalities.
Moreover, the applicant must address the issue of the family home (Article 176, para. 1, ch. 2 CC). The judge will weigh the interests based on the specific circumstances to reach the most appropriate solution. Initially, the judge will assess the usefulness of the accommodation, taking into account the children’s situation, the professional context, and the personal situation of the spouses. If a clear result cannot be reached based on this assessment, the judge will determine which spouse is better suited to move based on their personal situation (age, health, emotional ties). If the judge still cannot reach a solution at this stage, they will then consider the legal status of the property. Thus, the judge will award the family home to the spouse who is the owner or who has another right of use.
When the spouses have children together, a spouse cannot generally be required to take up part-time employment until the youngest child reaches the age of ten, and full-time employment until the child reaches the age of sixteen. Additionally, the applicant must allege facts that impact the children’s situation. This includes issues of parental authority, custody rights, visitation rights, maintenance contributions, and the need for protective measures.
Furthermore, the professional situation of the parties should be mentioned. The aim is for the spouses to be financially independent. Thus, depending on the circumstances, one spouse may be required to engage in gainful employment or increase their working hours.
The financial situation of each party must also be alleged to determine the amount of the maintenance contribution (Article 176, para. 1, ch. 1 CC). The judge will consider the economic capabilities and the respective needs of the spouses. The judge will also take into account the division of tasks agreed upon during the marriage. The amount is at the judge's discretion. In all cases, the goal is to set the maintenance contribution so that, as long as the marriage lasts, each spouse contributes equally to the previous standard of living.
For urgent protective measures (Article 265 CPC), the applicant must allege the marriage between the spouses, the circumstances justifying such measures, and the urgency of the measures to be taken.
When it comes to protective measures aimed at withdrawing the power of representation (Article 174 CC), the applicant must allege the marriage between the spouses, the incapacity to represent or the evident excess of the other spouse’s powers of representation, as well as the risk of significant and lasting harm to the family’s interests.
Sometimes, the judge orders the separation of property as a protective measure for the marital union (Article 176, para. 1, ch. 3 CC). To do this, the applicant must allege the marriage, the cessation of common life, a threat to their economic interests, and substantiate that other measures would be insufficient to protect these economic interests.
Finally, it is worth mentioning that other protective measures for the marital union can be ordered, such as notifying creditors (Article 177 CC) or restricting the power of disposition (Article 178 CC).
Would you like to initiate protective measures for your marital union? Our team of professionals would be pleased to welcome you at our office located at 1 Rue du Valentin, 1004 Lausanne, to provide advice and assist you with your legal procedures.
Fjolla Katana, External Member
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