Switzerland and Changes in European Law and Case Law
In the context of private investigations, the work of a professional always takes place within a specific legal and societal framework. While separation-related issues are among the situations that may lead someone to hire a private investigator, it is crucial to understand that the investigator’s role is no longer to prove moral “fault,” but rather to establish objective facts within a rapidly changing legal landscape.
A neutral stance: intervention under a mandate
The modern private investigator is not an “adultery specialist.” He or she is an investigator working under a retainer, with a broad scope of practice (civil, commercial, and family matters). His or her expertise lies in rigorously documenting factual situations, without making value judgments, in order to provide information useful for decision-making or legal proceedings.
Is fault-based divorce still recognized in Switzerland?
While some neighboring countries still cling to remnants of the concept of guilt, Switzerland took a major turn more than two decades ago.
Since the reform took effect on January 1, 2000, the concept of fault-based divorce has been abolished. Swiss law no longer seeks to identify a “culprit” for the breakdown of the marriage, but instead relies on objective criteria.
This evolution in Swiss divorce law aims to prioritize a pragmatic approach focused on the spouses’ actual circumstances rather than on assigning moral blame.
The main grounds for divorce in Switzerland today are based on:
The breakdown of the marital relationship
Mutual consent or de facto separation
The absence of a “fault-based divorce”
This approach helps avoid lengthy and contentious proceedings based on personal accusations, while promoting a more peaceful resolution of the consequences of divorce.
Can the marital duty still be invoked?
This Swiss peculiarity stands in stark contrast to French practice, which was recently criticized by the European Court of Human Rights (ECHR).
In a landmark case, a French court had granted a divorce on the grounds of the wife’s sole fault, finding her guilty of refusing to fulfill her “marital duty” over a period of several years. Upon reviewing the case, the European Court of Human Rights condemned this view:
Invasion of privacy
Legally penalizing a refusal to engage in sexual relations constitutes a violation of Article 8 of the European Convention on Human Rights, which protects the right to privacy.
Prioritizing integrity
This ruling highlights the tension between the historical “marital duty” and the absolute prohibition against any form of violence or coercion (marital rape).
This international decision confirms the relevance of the Swiss model, which has long separated private morality from the legal consequences of divorce.
In Switzerland, the courts focus primarily on the specific facts that affect the financial, family, or property-related aspects of the case.
Does adultery still matter in a divorce?
Contrary to popular belief, infidelity no longer automatically affects the outcome of a divorce in Switzerland. Adultery is no longer considered grounds for granting a divorce based solely on the fault of one spouse.
However, certain situations may have indirect repercussions when they affect the financial or family-related aspects of the case. For example, significant expenses incurred at the expense of the joint assets or certain behaviors that could harm the child’s best interests may be taken into account in the overall assessment of the situation.
Why hire a private investigator during a divorce?
The private investigation is no longer intended to build a case for guilt, but rather to clarify objective facts that may affect the divorce proceedings, spousal support, or child custody arrangements.
Some of the most common situations include:
Verify the accuracy of a financial situation
A private investigator can help verify certain details related to a person’s income, professional activities, or actual standard of living when inconsistencies arise during divorce proceedings. This information can be useful in determining spousal support payments or potential alimony.
Protecting the best interests of the child
In disputes over child custody or visitation rights, it may be necessary to document specific facts regarding the child’s living environment, safety, or well-being. The goal is always to protect the child’s best interests.
Documenting facts under Article 115 of the Civil Code
In rare cases, Article 115 of the Swiss Civil Code allows for a request for an immediate divorce when serious grounds make the continuation of the marriage objectively intolerable. In this specific context, rigorous and legally admissible factual documentation can prove decisive.
FAQ - Questions you may have about divorce in Switzerland
No. Since the divorce law reform took effect on January 1, 2000, Switzerland no longer recognizes fault-based divorce. Adultery therefore no longer constitutes grounds for a divorce based solely on the fault of the unfaithful spouse. The judge now considers objective criteria such as the breakdown of the marital relationship, mutual consent, or the duration of the separation.
The most common investigations include matrimonial investigations, surveillance and tailing, commercial dispute investigations, missing person searches, fraud-related investigations, as well as the collection of evidence for use in legal proceedings.
The private investigator assesses the client’s situation, develops a tailored investigation strategy, and provides a detailed report that can be used for legal or private purposes.
Yes, a private detective can gather evidence to establish an extramarital affair or certain types of behaviour. However, in Switzerland, the aim is no longer to prove moral fault in divorce proceedings. The investigation is primarily intended to establish verifiable facts that may have an impact on other aspects of the case, particularly financial or family matters.
Generally speaking, no. Swiss courts base their decisions on the best interests of the child, not on the parents’ romantic lives. An extramarital affair will therefore have no direct impact on custody. However, if certain behaviors have a tangible impact on the child’s well-being, safety, or living environment, the judge may take them into consideration.
Article 115 of the Swiss Civil Code allows a spouse to file for divorce before the expiration of the separation period when there are serious grounds that make the continuation of the marriage objectively intolerable. This provision is exceptional and applies only in particularly serious situations. Thorough documentation of the facts may therefore be crucial in enabling the court to assess the situation.
Things to keep in mind
Switzerland has not recognised the concept of fault for many years, thereby avoiding international condemnation for interference in the private lives of spouses. In this context, the private investigator acts as a fact-finder. Their work consists of bringing clarity to disputed situations, whilst always strictly respecting the right to privacy and the legal provisions of the Civil Code.
Family disputes in Geneva: a report broadcast by Radio Lac
This topic was also the subject of an advertorial by Radio Lac focusing on the role of evidence in family disputes in Geneva. The article looks in particular at situations in which the involvement of a private investigator can help to establish objective facts and shed light on certain family proceedings.
Read the Radio Lac report: Family disputes in Geneva: when evidence becomes the key to reconciliation
Are you looking for factual information in connection with a separation, a family dispute or a child custody matter?
