Family Policies: Switzerland (2014)

Introduction
The Swiss Civil Code, adopted in 1907, is the main source of family law in Switzerland. The code’s definition of family is based on a matrimonial union and their legal offspring. In line with the socially dominant view of the family in the early 20th century, the code made dissolving a marriage almost impossible, and mandated large differences in the status of the husband and the wife.

Over the years, the gap between social reality and the law expanded. In order to adapt the Civil Code to changing mores, a comprehensive reform of family law was undertaken in 1956. The reform was broken up into several parts. The new law of affiliation went into effect in two stages in 1973 and 1978, and an amendment to the Civil Code dealing only with the effects of marriage was passed by parliament in 1984 and went into effect on 1 January 1988. The overhaul of family law was followed by a review of the provisions related to marriage and divorce. This resulted in the passage of the so-called "new divorce law", which went into effect on 1 January, 2000. New rules regarding registered partnerships were adopted on 18 June 2004 and went into effect on 1 January 2007.

Unlike the 1907 rules, the new marriage regulations place spouses on an equal footing, ensuring the protection of the personality of each spouse during the marriage. This approach is in line with the federal constitution, which has since 1981 required the legislature to ensure equality between men and women, particularly in the area of family law. Consultation and consensus between the partners are emphasised in the new laws governing marriage.

Overall, Swiss political institutions—especially those related to federalism and direct democracy, which allow for referendums and initiatives on every law passed by parliament—strongly influence the development of Swiss public policies. Due to a combination of federalism, direct democracy, and the subsidiarity principle, the status quo has generally been maintained and interventionist family policies at the federal level have been avoided. For many years, family policies were primarily the responsibility of the cantons (provincial states), which took a more or less generous approach. The aim of federal lawmakers has been to promote the standardisation of the cantonal policies to ensure minimum protections for all citizens of the country. In several areas, however, the cantonal policies have been more favourable to families than the federal policies. To provide a comprehensive picture of the situation in Switzerland, it is therefore necessary to look at each canton's policies, as well as federal policies.

Swiss labour market statistics show that men and women who do not have dependent children are equally integrated into the labour market. After they have children, women are compelled by the organisation of the labour market and the lack of childcare places to work part-time so they can combine paid work with caring for their children. The state intervenes as little as possible in an area considered to be primarily the responsibility of the parents; usually the mother. While the topic of work-family reconciliation regularly appears on the political agenda, to date there have been few practical advances on this issue.

 

Childcare provision

In 1977, an ordinance regulating the placement of children was enacted at the federal level. The sole purpose of this law was to ensure the protection of children. The first article states that "the placement of children outside the family home is subject to authorisation and supervision"; and that this must be done under the best possible conditions. No further considerations were mentioned, and no incentives for the development of full-day childcare places or daycare centres were included. The cantons are responsible for implementing the federal order, but are not required to enact new legal requirements.

In response to an increase in the share of women participating in the labour market, the Federal Law on Financial Aid for Non-Family Homes for Children was enacted in 2003. The programme, which creates additional childcare centres, was scheduled to last eight years, but has been extended until 2019. The responsibility for providing financial support for the creation of nurseries was turned over to the Swiss cantons. All of the cantons have made efforts to address to the needs of their residents who are employed and have young children. However, the amount of financial help offered by the cantons varies, and ranges from support for the training of educational staff to support for up to 60% of the operating costs of daycare centres. Thus, parents across Switzerland do not have equal access to childcare.

Currently, there many different kinds of childcare arrangements in Switzerland: e.g., nurseries, kindergartens, au pairs, nannies, and family childcare homes. However, openings in childcare facilities are rare, and costs vary considerably depending on the formula selected. Nursery rates are generally based on family income, which is not the case for kindergartens and au pairs. Nurseries provide care for infants and young children until children reach the compulsory school age, which is between four and six, depending on the canton. Nurseries offer professional care on an all-day basis, and cover the cost of lunch. Kindergartens and other daycare centres usually provide care for older preschool children only, and often have more limited hours. This diversity in supply leads to disparities in access to childcare for parents depending on their place of residence. In some areas, the demand is so high that the existing structures cannot cover the demand, and parents must turn to other source of childcare. Thus, the reality that families need greater access to preschool childcare and education is gradually being recognised in Switzerland. The federal family law of 2003 acknowledged that the reconciliation of work with family life for both men and women is not just a private matter.

 

Parental leave (including maternity protection)

Swiss law does not provide for forms of parental leave which would allow both mothers and fathers to interrupt their professional activities after a birth or an adoption. Currently, federal law provides for maternity protection only.

Working mothers are protected by four laws, each of which addresses a specific dimension of maternity protection.

  • In its descriptions of the conditions of women's employment, Swiss  labour law protects the health of pregnant workers, mothers after they have given birth, and breastfeeding mothers. According to article 35a, al. 3 LTr, employing women during the eight weeks after childbirth is prohibited. Since 1 July 2005, workers have been entitled to maternity leave of at least 14 weeks following childbirth. The leave ends after 14 weeks, or earlier if a mother decides to return to work. However, a mother is not permitted to return until at least eight weeks after giving birth. Between the 14th and the 16th week after giving birth, a mother is not obliged to return to work, but she is no longer entitled to be paid by her employer.
  • The Code of Obligations protects pregnant women and women who have recently given birth from being dismissed or having their pay reduced.
  • The Law and the Regulation on Allowances for Loss of Earnings was originally designed to provide (partial) compensation to men performing military duties. Since its revision, which went into effect on 1 July 2005, it also provides for compensation for loss of earnings due to childbirth.
  • The Act on Equality between Women and Men prohibits discrimination against women, particularly discrimination related to a current, future, or past pregnancy.

The father can take paternity leave from work in the form of special leave or days off, according to article 329, para. 3, CO. Switzerland still does not recognise the father's right to spend the first few days after the birth of his child with his family; or, in the case of adoption, the first days after the arrival of the child. Some companies and government agencies voluntarily provide new fathers with paternity leave of one to two weeks.

It should be noted that maternity protection has long been regulated primarily by the cantons, and this has not changed since the federal regulations were introduced in the 2000s. The cantons' laws apply in cases in which these regulations are more generous than the federal regulations. Similarly, some collective labour agreements and companies provide more favourable conditions to mothers than those mandated by federal legislation.

 

Family allowances

A federal law passed in 1952 which provides family allowances for workers in the agricultural sector was the first federal law on family allowances. From 1943 to 1965, family allowance laws were enacted in all of the cantons. In addition, several collective conventions on family allowances were passed by public agencies and private enterprises.

On 26 November 2006, the Swiss voters approved the new Federal Law on Family Allowances of 24 March 2006 (FF 2006 3389; LAFam),. This law, which went into effect on 1 January 2009, harmonised the federal payment of family allowances outside of the agricultural sector. Families are entitled to receive a minimum monthly allowance of CHF 200 per child under age 16, and of CHF 250 per month per child ages 16-25 (art. 5) in professional training. Some cantons offer higher amounts. The allowance is paid regardless of family income, and does not give priority to disadvantaged families. The family allowance is also independent of other social benefits; i.e., the allowance is paid to families receiving other forms of public aid, such as benefits for a child with disabilities.

Under article 7, each family is entitled to receive only one family allowance payment per child. There are a number of criteria determining which of the parents receives the allowance: generally, it is the first parent who is employed, followed by the parent who has the main parental authority or with whom the child lives most of the time.

With regard to the tax level, the law authorises deductions for families and people with children.

 

Marriage

The conditions for marriage are related to the legal capacity of the partners, the valid expression of the partners’ will to marry, and the absence of impediments to marriage. An individual who wishes to marry must have the legal capacity to enter into the state of matrimony: i.e., he/she must be at least 18 years old and be capable of independent decision-making.

As the law requires each partner to demonstrate a genuine and serious desire to marry, at the wedding both the bride and the groom must make an express statement to that effect to the officer in the presence of witnesses (art. 102 CC). Neither partner can be represented by a third party in declaring his or her willingness to marry. The officer then determines whether both partners have a serious desire to marry, or whether they are using marriage to obtain legal residence or nationality. The declared intention to marry must also be free of defects of consent (mistake, fraud, or threats). Parental relationships between spouses and polygamy are impediments to marriage.

The Federal Law on Registered Partnership between Same-Sex Persons (LPart) was adopted by the Swiss Parliament on 18 June 2004. Following a referendum in opposition to the law, LPart was subject to a popular vote on 5 June 2005. It was accepted by 58% of voters, and went into effect on 1 January 2007.

The partnership regulations in LPart are similar to the provisions of the Civil Code on Marriage. Under federal law, only same-sex couples may enter into a registered partnership. The marital status of each of the partners is listed as being in a registered partnership. The material conditions related to forming a registered partnership are similar to those of marriage; i.e., both partners must be at least 18 years old and capable of independent decision-making.

 

Divorce

When the Swiss Civil Code was adopted in 1907, the principle of at-fault divorce was established in Swiss law. Divorce was seen a legal sanction in which the innocent spouse could ask the judge to penalise the spouse responsible for the dissolution of the marriage, and make him/her pay financial compensation to the injured spouse. As the concept of divorce as a sanction came under increasing criticism, the provisions on divorce in the Swiss Civil Code were modified on 26 June 1998, and the changes went into effect on 1 January 2000. The revision marked the legal transition from at-fault divorce to divorce by mutual consent. Under current law, each spouse can obtain a divorce by proving that the marriage has failed, usually by presenting evidence that the spouses are in conflict or have been separated for a period of time. Divorce may also be granted based on the mutual agreement of the spouses. Following the reform of 26 June 1998, (RO 1999 1118), the failure of the marriage could be established unilaterally if one of the spouses provided evidence of a marital separation of at least four years, or two years after 1 June 2004 (RO 2004 2161). Moreover, a husband is permitted to obtain a divorce unilaterally following a separation period of less than two years if he can prove that the continuation of the marriage had become unbearable for serious reasons that are not attributable to him. However, under Swiss law divorce does not necessarily dictate the end of the material solidarity that arose from the marriage. If a spouse who divorces is unable to adequately provide for him/herself, the former spouse may be ordered to make support payments. Moreover, the principle of the equitable distribution of wealth accumulated during the marriage has been extended to pension benefits from occupational benefit plans. Under Swiss law, the end of the marital relationship does not affect the relationship between parents and their children. Thus, parents are permitted to continue to have joint custody of their children after divorce. Until 2014, the assumption of joint parental authority was not automatic in the case of divorce, and in most cases mothers were awarded sole parental authority and custody of the children. In addition, women were automatically granted parental authority if the couple were not married. But since July 2014, both parents, regardless of whether they were married, are entitled to hold parental authority.

 

Cohabitation and civil unions

Unlike marriage and registered partnership, cohabitation is purely contractual, and is not recognised as a civil union. Both same- and opposite-sex couples can enter into an informal contract (orally or in writing) of limited duration. The existence of a "cohabitation contract" is governed by the general rules of the Code of Obligations (CO art 1ss) and the rules of the Civil Code on the Exercise of Civil Rights (article 12 ss CC). Over many years, case laws and legal doctrine have affirmed that this kind of contract can have legal implications. In the absence of formal regulations, case law has also established a number of specific rules which may be applied in disputes involving domestic partners, usually related to separation.

Unlike marriage, cohabitation has no effect on the civil status of the partners. In a paternity action, the defendant's cohabitation with the mother of the child raises a presumption of paternity (art. 262 CC). If the child is born out of wedlock, filiation is established through paternity recognition (article 260 CC). In most cases, the father makes the necessary arrangements with the civil officer at or before the birth. The legal recognition of the child by the father before the child's birth has the advantage of ensuring that the child has inheritance rights (if the father dies before the birth) and access to insurance benefits (such as an orphan's pension).

At the time of the birth of the child, unmarried parents jointly exercise parental authority if they have filed a joint declaration to that effect together with the paternity recognition. Such a statement may be made even before the birth of the child. It must be filed with the civil officer in person and in writing (Law of 1 July 2014).

 

Authors – Contributors
Marie-Eve Zufferey
University of Geneva

Eric Widmer
University of Geneva

 

Bibliography

  • Olivier Guillod (2014). Droit des familles. Collection Les abrégés. Helbing Lichtenhahn