«For many women, the judgement is a slap in the face»

It was revolutionary: «The Federal Supreme Court reinvents marriage» was the headline in the Tages-Anzeiger newspaper after the judgement. A case from the canton of Solothurn was decisive for the new marriage case law: a 45-year-old mother of three children had managed the family for over ten years and renounced her own career in favour of her husband.

The divorce followed after eleven years. The wife found it unreasonable to expect her to return to work. However, the Solothurn District Court ruled that if she was unable to return to her original line of work, she would have to consider part-time employment in another sector, for example in care or retail. The woman objected to this on the grounds that she was almost 45 years old at the time of the separation and therefore fell under the applicable «45 rule» and was entitled to alimony until retirement age. The High Court and the Federal Supreme Court followed the judgement of the District Court. In doing so, they overturned the rigid formula for entitlement to maintenance payments.

Mrs Nägeli, the Federal Supreme Court is sending divorced women back to work. What do you think of this judgement?

As a lawyer, I always represent the interests of a client. My personal opinion is not relevant. As a lawyer, what bothers me about the judgement is that the «field is being rolled up from behind». Anyone who decided in favour of a traditional family model ten or fifteen years ago was working from completely different premises back then. I find it somewhat disconcerting to be «penalised» retroactively for an earlier decision. Modernisation should come from society and not be enforced by the courts.

Many men are likely to welcome the new case law.

As we all know, there are two sides to everything. Let's take the example of a man with an average income, where the desire for separation and divorce comes from his wife. At some point, she may have a new partner. The man's enthusiasm for supporting his non-working ex-wife until she retires will be limited.

What is the Federal Supreme Court trying to achieve with this judgement?

The current situation is not as new as it may seem. The «clean break» principle has been in force since the introduction of divorce law in 2000 and states that each spouse must generally provide for their own maintenance after the divorce. Unless «life-changing circumstances» were created by the marriage. These included the marriage having lasted ten years and/or one spouse - usually the wife, due to childcare - not being employed. This was a first small step towards modernisation.

Anyone who previously lived a traditional family model will not be able to reorganise themselves from one day to the next.

How has divorce law been adapted in recent years?

Since 2018, the school level model has been in force, i.e. the rule that it is reasonable for both parents to work 50 per cent from the youngest child's entry into kindergarten, 80 per cent from upper school and full-time from the age of 16. At around the same time, alternating custody was introduced, which also has financial consequences. The current judgement is simply a tad stricter and should probably be seen as part of a bigger picture.

Alternating custody in particular is repeatedly criticised.

Not without good reason. Of course, the idea of fifty-fifty childcare after a divorce is a positive one. But the reality is often different. Anyone who previously lived a traditional family model will not be able to reorganise themselves overnight. What's more, external childcare is valued in the same way as home care. Parents who opt for the traditional model often do so because they don't want to have their children looked after by someone else.

If one parent is forced to go back to work after the divorce and leave the children in the care of the other parent, you can understand the doubts about this system. For someone who has looked after the children one hundred per cent for years, it is a slap in the face when they find out how little this is appreciated.

What does this mean for the children?

This also needs to be looked at individually. It's not as if external childcare is fundamentally bad for children or that they suffer per se if both parents work. But this is more of a psychological problem than a legal one.

After years away from your job and at a certain age, it is difficult to get back into it. What advice would you give women in such a case?

In my experience, many people are not interested in returning to their original job after a long absence. They are very happy to consider retraining or a new apprenticeship. The husband's financial circumstances play a role in the question of financing. If these allow it, you could, for example, agree on maintenance payments until the end of the retraining programme.

And if that doesn't work?

According to the Federal Supreme Court ruling, the ex-wife can then be required to take on a temporary job to bridge the gap.

In my everyday life, I very rarely see someone who is not interested in going back to work after a separation.

There is always talk of the famous «special circumstances» that lead to exceptions. What could these be?

For example, if a woman had her children very late, the school level model is more likely to apply than the principle that you can return to full-time work at 45. Anyone who has a child with a disability and is therefore only able to work to a limited extent is also assessed separately.

Let's return to the case at issue in the current judgement of the Federal Supreme Court: would there have been a legal trick that the woman could have used to avoid having to work?

In my everyday life, it is extremely rare for someone to have no interest in going back to work after a separation. Most people are keen to stand on their own two feet. Many have to come to terms with the fact that their previous work bringing up children is not valued and that returning to work can be a long and arduous process.

Does the judgement also affect unmarried couples?

Not really. For a few years now, there has been childcare maintenance, according to which parents without caring responsibilities pay alimony. This still applies, but basically only covers the minimum subsistence level of the parent providing care.

Would you advise couples who want to get married and start a family today to have a contract that regulates everything?

Such an agreement would be more of a declaration of intent than a binding regulation. There is no guarantee that it will still be valid at the time of the divorce. For example, if one of the partners then earns much more or less than at the time the agreement was concluded.