Divorce Forum Shopping in Switzerland: Why Expats Should Think Before They File
An international couple living in Switzerland separates. One spouse is British, the other French. They married abroad, own assets in several countries and have built up pension savings in Switzerland.
Where should they divorce?
For many expats, the answer is not necessarily “Switzerland”.
When more than one country has jurisdiction, the choice of where divorce proceedings are started can have important financial and procedural consequences. This is commonly referred to as forum shopping.
And in international divorce cases, timing can matter.
Can an expat divorce in Switzerland?
Swiss courts generally have jurisdiction if the defendant spouse is domiciled in Switzerland.
A spouse living in Switzerland may also file here if he or she has been resident in Switzerland for at least one year. Swiss citizens benefit from additional grounds of jurisdiction.
But an international couple may simultaneously have links allowing proceedings to be started in another country — for example because of nationality, a previous residence or the other spouse's domicile.
That is when the choice of forum becomes important.
Why does the country of divorce matter?
Because the result is not necessarily the same everywhere.
Depending on the countries involved, choosing one jurisdiction rather than another may affect:
spousal maintenance;
the treatment of matrimonial assets;
pension rights;
interim financial measures;
the duration and cost of the proceedings;
and sometimes the procedural position of each spouse.
Swiss courts apply Swiss law to the divorce itself and, in principle, to many of its consequences. But international cases are more complicated than that: specific rules apply to maintenance, matrimonial property, children and pensions.
For matrimonial property in particular, Swiss private international law even allows spouses, within certain limits, to choose the law governing their marital property regime. In the absence of a valid choice, the applicable law depends mainly on the spouses' domicile history and nationality.
The first court seized can matter
This is where forum shopping becomes very practical.
If divorce proceedings concerning the same matter are already pending abroad, a Swiss court will generally stay its proceedings where the foreign court is expected to issue within a reasonable time a decision capable of recognition in Switzerland.
In other words, in some international cases, the question should be analysed before proceedings are started — not after receiving the other spouse's divorce petition.
Filing quickly without first considering the alternatives can nevertheless be equally dangerous. A jurisdiction that looks attractive for one issue may be less advantageous for another.
One Divorce, Multiple Jurisdictions
This is particularly important for expats.
Children are subject to specific international rules, notably based on their habitual residence. Maintenance obligations also have their own conflict-of-law rules.
Swiss occupational pensions are another good example. Swiss courts have exclusive jurisdiction over claims concerning the division of occupational pension rights held with a Swiss pension fund. A foreign divorce may therefore leave a Swiss pension issue that still needs to be dealt with in Switzerland.
The apparently simple question “Should I divorce in Switzerland or abroad?” can therefore become a much broader strategic exercise.
Where You File Can Change the Outcome
For an international couple, it can be worth checking the position in each available country before either spouse starts proceedings.
The relevant questions are often:
Which courts have jurisdiction? Which law will they apply? How will maintenance and assets be treated? What happens to Swiss pension rights? Where are the children habitually resident? Will the eventual judgment be recognised in the countries where it needs to take effect?
A foreign divorce can generally be recognised in Switzerland when the required international connection with the country of divorce exists, but recognition itself also has to be considered when planning the proceedings.
Forum shopping is therefore not a loophole. It is part of properly planning an international divorce.
For expats living in Switzerland, a short consultation before filing can sometimes make a substantial difference. Once proceedings have already started in one country, the range of strategic options may be considerably narrower.