In the event of a separation of a married couple, a spouse may ask the judge to rule on the question of the principle and the amount of a maintenance contribution to be paid by the other spouse after having moved out.
Nicolas MOSSAZ presents seven principles applied by Swiss Courts when ruling on such questions.
1) Standard of living constitues the starting point
What this means: in the event of sufficient income, the spouses are entitled to maintain a lifestyle similar to what was the case during the marriage.
2) Spouses are entitled to a similar standard of living
What this means: the principle of equality rules between spouses. This means that both spouses will have to adapt in the event of insufficient income of a spouse to be able to cover previous living standards.
3) Standard of living constitutes the upper limit
What this means: the principle of equal treatment of spouses in the event of a separation must not lead to a shift of assets, anticipating the liquidation of the matrimonial regime. This means that the standard of living during marital life constitues the upper limit of the maintenance right.
4) Each spouse has a duty to participate
What this means: the law imposes on each spouses the duty to participate, according to their abilities, to the additional costs resulting from the separation. This means that the judge can in certain cases impute a hypothetical income to a spouse, considering that he or she would be able to earn this income given his/her level of education, age and health situation.
Important: when a parent devotes himself to the care of children, the Swiss Supreme Court considers that she/he must in principle be able to resume working at 50% until the youngest child enters primary school, at 80 % from the moment the child begins secondary education and at 100% from the end of the child’s sixteenth year. These are guidelines that can be adapted depending on personal circumstances.
5) Self-employed income is made up of net profit
What does it means: a self-employed person’s income is made up of his net profit, i.e. the difference between income and expenses. If the income is fluctuating, an average should be established over three years, or even longer if the fluctuations are significant or the data uncertain. In the event of implausible allegations or unconvincing documents, private expenses are considerated as hidden income.
6) The net salary of an emplyoee includes all amounts paid to the employee
What this means: for employees, the net salary also includes the 13th salary, non-guaranteed bonuses and gratuities provided that they have been paid regularly over the past few years.
7) Income from wealth should be taken into consideration
What this means: in principle the judge must take the actual income made by a spouse through his personal wealth into consideration. Alternatively, it was deemed permissible to consider an income of 3% for wealth.
Please note that these pinciples apply to married couples facing a sepearation. Different principles apply when a judge considers alimony questions in the case of a divorce.
22/08/23 – Nicolas MOSSAZ, attorney-at-law
