The new Swiss divorce practice has sparked controversy. Good, some say, because now marriage is no longer life insurance for women. Incomprehensible, say others. Two of those affected talk, and a lawyer classifies.
In a divorce, both sides run out of money.
“It was important to me to be married when I started a family and to be one with my husband financially as well. I didn’t want to shoulder most of the responsibility alone, especially as I had seen before how single mothers sometimes fought on all fronts,” says Eliane B.
The 57-year-old gave up her job after the birth of the second of her three children. According to the legal practice that has been in force since 2021, she has to go back to work, but finding a job is difficult.
Eliane B. (name changed) on the legal practice that has been in force since 2021: «I am in favor of personal responsibility and financial independence. But here the posts were moved during the game. The rights and obligations I assumed at the time no longer apply. If I had known, I might have positioned myself differently.”
Significant reductions in the standard of living
The family lawyer Angelika Häusermann from the law firm Walter Häusermann confirms the problem. “If you’ve gotten involved with the classic distribution of roles, it can be shocking,” she says. However, Häusermann also sees the goal of the new legal practice. “The caring parent should be reintegrated into working life more quickly.”
This should happen via the two biggest changes in family law from 2021: the elimination of the so-called 45 rule and the introduction of the school level model. In the past, the full-time caring parent was no longer expected to take up work after the age of 45, but this is now expected at any age.
The so-called school level model is used here. As soon as the youngest child starts compulsory school – depending on the canton, this is already the case from kindergarten – a 50 percent workload is required. From the transition to the upper school it is 80 percent, from the age of 16 a full workload. Previously, a 50 percent return to work was not expected until the youngest child was 10 years of age, and full-time work was not expected until the youngest child was 16 years of age.
Despite the general rule, according to Häusermann, the courts look at each case individually and check what is reasonable for the divorced partner. Age, education, the number of children and whether they need a lot of care because of a disability, for example, are also taken into account. It is also taken into account what income the financially weaker partner can realistically achieve at all.
Anyone who can prove with applications that they are seriously trying to find a job will be viewed differently when assessing the support they are entitled to than someone who is not interested in working the required part-time job. In the end, however, it undoubtedly remains extremely uncomfortable and potentially overwhelming if you don’t decide yourself, but a judge, what is reasonable.
The new requirement hits hardest the classic housewives and househusbands. After a long period of family time, it is often difficult to regain a foothold in the labor market. However, the reality of life in Switzerland has changed significantly in the last 30 years. Since 1991, the employment rate of mothers has increased by more than 20 percentage points to 82 percent.
The mothers are not only employed more frequently, but also increasingly with higher work hours. The proportion of those with a workload of more than 50 percent has risen from a good quarter in 1991 to 45 percent in 2021. However, only 20 percent of mothers work full-time, with the proportion of divorced or separated women being higher than that of those in a partnership.
According to Häusermann, mothers with little knowledge of the national language and without recognized training have the greatest difficulties with the new requirements. Nevertheless, the situation is not only stressful for them. Since two households with two rents cost significantly more than one, most separated families have to make significant cuts in their standard of living. It is not uncommon for both partners to live below the subsistence level because there is no more money. In such cases, divorce proves to be a hard cost trap for both sides.
Discrimination against cohabiting children abolished
The fact that legal practice is changed “on the fly”, as Eliane complains, is nothing fundamentally new in family law. In 2014, the Federal Supreme Court decided to make single fathers more responsible. Previously, they had only had to pay for the regular costs for the child, i.e. clothes, food, health insurance, daycare, hobbies and mobile phone. However, there were no alimony for caring mothers.
Single mothers therefore had to finance their own livelihood at all times. In order to put an end to the resulting disadvantage for the children, so-called child support payments have also been made for the children of unmarried couples since then. This is intended to compensate for the performance of the parent who takes care of the children after the divorce or separation and is therefore less able to work.
The late career turbo is an illusion
Even if the parent providing more care has continued to work on a reduced basis after the birth, the path back to a career can be difficult.
“I earn my own money, but I can’t catch up on building my career,” says Valerie K., who has been working part-time since the birth of her children. “You’re just not professionally where you would have been without children.” These are now larger, but there is always something. “That’s why it’s illusory to just turn on the career turbo,” she continues.
The mother also takes issue with the nonchalant assumption that one can find a good job with part-time work. “Good jobs with opportunities for advancement are often only advertised at 80 to 100 percent.” Anyone who only works 50 or 60 percent because of the children is punished financially. If there is a divorce, one parent stagnates in a lower wage range, while the other could have made a career.
The mother hits a sensitive point. Career development usually takes place between the ages of 30 and 40 – exactly the time when many women are cutting back on their careers to have children. In most companies, a workload of at least 80 percent is required for managerial positions.
Discuss the concept of marriage early on
Those who have mostly taken care of the children are therefore often at a financial disadvantage. However, Angelika Häusermann knows that there is also the other, emotional side of feeling disadvantaged. This particularly affects fathers who realize during the divorce that they have spent less time with their children than they would have liked.
From her practice she knows the situation where the working parent says: “I always wanted you to work.” The caring parent replied: “I always wanted to work, but it wasn’t possible because you never took on family responsibilities.” Then it’s easy to throw the whole construct at each other. In order to avoid that, the lawyer thinks it’s important for couples to talk about how they want to share family chores at an early stage. “You also have to address unpleasant topics; that’s better as long as you’re still pulling on a rope.”
Unmarried couples are often better off in this regard, says Häusermann. Because they knew that they did not fall within the legal framework of marriage, they thought more often and earlier about their family model and its financial implications. A marriage or cohabitation contract offers a framework for setting down the ideas in writing. Very few couples complete such a deal. “I would certainly recommend it,” says Angelika Häusermann. “So you can discuss the whole concept of marriage.”
Crux of post-marital alimony
If a spouse withdraws professionally, this has financial consequences. In the event of a divorce, these come to the fore. Actually, each partner should support themselves as much as possible – but those who take care of children are not always fully able to do so. Such a gap is filled by post-marital maintenance. However, it has not been clearly clarified how long both partners are entitled to an equivalent standard of living.
This can be illustrated with an example. During his 20-year marriage, a 50-year-old man’s salary has risen from 100,000 to 250,000 francs. The woman, on the other hand, had a career break. Her salary of 100,000 francs stagnated or fell to 50,000 francs because of her 50 percent workload. Are both of them entitled to an equivalent standard of living until retirement, or does a possible entitlement to pension maintenance (to finance old-age provision) end when the youngest child turns 16 and the person caring for them is required to return to full-time employment? Although this can make a substantial difference for high earners, there are different legal opinions.
It is not uncommon for the parent who took less care of the children during the marriage to want to intensify contact after the divorce. “However, this concern is also often needed in order to work less and get away with it cheaper for maintenance.”
On the other hand, if one partner feels left hanging when it comes to childcare, it becomes more difficult to get off to a good start in the workplace. However, according to Häusermann, things that previously seemed impossible could definitely work in such a situation. With the prospect of having to pay less maintenance, the motivation to take on tasks in the family increases in some cases. “All of a sudden it works.” If things really work out in everyday life, even if a child is unexpectedly ill, the parent taking care of them is often willing to agree to a new division.
Fighting about the children and the money
Divorce causes arguments, usually about the children and the money. But it is also about lost love, offended feelings and perhaps tormenting fears. Many of those affected may only realize in retrospect what hopes and wishes they have not realized. A career break may not be able to be made up for – neither is the time with the children. What was true for both of them when they were still a couple is questioned. “It’s a moment of reckoning, and that’s not nice,” says one mother. It’s arguably this mix of emotional hurt and financial strain that can make divorce so draining.