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  #21  
Old 03.09.2015, 12:35
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Re: Divorce or legal annulment?

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Are you really stupid?
No, quite the opposite. I've deliberately avoided posting any more details of the couple's circumstances out of respect for both of them. Just because some juicy details aren't in the original post, please don't assume my friend is arbitrarily trying to "dispose" of his wife. Maybe she has even asked for the divorce herself and he just wants to get an annulment instead? Or maybe myself or some other friend got a picture of the wife with another man? Or maybe he found her email address in the Ashley Maddison database? All I will say is that my friend does have grounds to wonder about these things.

Family courts have safety checks in place to prevent aggressive, one-sided behavior and if my friend had no justification for his course of action then it would probably end up costing him a lot more.

So back to the original question, without any moral judgments, can anybody comment on the technical or practical issues involved in a legal annulment in Switzerland?
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  #22  
Old 03.09.2015, 12:36
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Re: Divorce or legal annulment?

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The Catholic church has been granting annulments to people even if they were married for longer and had kiddies along the way.
.... or you could create your own church, declare yourself head of it and grant an annulment no questions asked (the English-speaking world famously has form here). It would have little bearing on the *legal* situation though.
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  #23  
Old 03.09.2015, 12:49
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Re: Divorce or legal annulment?

Switzerland does not give an F what the roman catholic church or any other church thinks about marriage and annulment except that the church can not marry a couple before the state did.

Here the text of Art. 105 Civil Code
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Art. 105



B. Annulment not subject to a time limit
I. Grounds
Grounds for annulment are:

1. that one of the spouses was already married at the time of the wedding and the previous marriage had not been dissolved by divorce or by the death of the previous spouse;

2. that one of the spouses lacked capacity of judgement at the time of the wedding and has not regained such capacity since; 3. that the marriage was prohibited due to kinship.

4. one of the spouses has no intention of living with the other, but wishes to circumvent the provisions on the admission and residence of foreign nationals.

5. a spouse has not married of his or her own free will;

6. one of the spouses is a minor, unless the continuation of the marriage is in the overriding interest of this spouse.
It is more or less what roegner said. Except that most of them have a clause where the marriage becomes legal under certain conditions.

OP is looking a Number 4. But hard to prove after five years of marriage. Specially as the wife could have filled for divorce after 3 years herself w/o loss of residency.

Anyway, if the wife lives in Switzerland for at least five years she is eligible for facilitated naturalization: Art. 27 Citizenship Act
https://www.admin.ch/opc/en/classifi...index.html#a27
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  #24  
Old 03.09.2015, 13:06
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Re: Divorce or legal annulment?

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Switzerland does not give an F what the roman catholic church or any other church thinks about marriage and annulment except that the church can not marry a couple before the state did.
Agreed, but the principle of annulment is similar: both the Church and the Swiss law are looking at marriages that were never valid to begin with rather than marriages that were valid at the beginning and failed later due to an affair or whatever.

Quote:
Here the text of Art. 105 Civil Code


It is more or less what roegner said. Except that most of them have a clause where the marriage becomes legal under certain conditions.

OP is looking a Number 4. But hard to prove after five years of marriage. Specially as the wife could have filled for divorce after 3 years herself w/o loss of residency.

Anyway, if the wife lives in Switzerland for at least five years she is eligible for facilitated naturalization: Art. 27 Citizenship Act
https://www.admin.ch/opc/en/classifi...index.html#a27
Point 4 refers to "admission and residence"

If it was just "admission" alone, then a spouse would only stay with somebody for as long as it takes to get the visa stamp at the local embassy and get through the passport checkpoint at a Swiss airport.

As point 4 mentions "residence" too, it could be aimed at those cases where a spouse stays with somebody for 3 or 5 years and then tries to take advantage of one of those other mechanisms for residence.
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Old 03.09.2015, 13:18
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Re: Divorce or legal annulment?

Seems like it would be difficult to establish that the foreign spouse had "no intention of living with" your friend, given that she appears to have willingly done so for 5 years.
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  #26  
Old 03.09.2015, 13:55
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Re: Divorce or legal annulment?

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Seems like it would be difficult to establish that the foreign spouse had "no intention of living with" your friend, given that she appears to have willingly done so for 5 years.
There is sometimes a big difference between what may appear logical to you and I and what line of reasoning the courts use.

Did anybody see any examples of court decisions in the newspapers? Given all the hype they print about immigration, surely they publish some facts every now and then? Or maybe they are embarrassed to say there has never been a single annulment under this clause 4 and they would be more embarrassed if the only annulment that was ever procured was initiated by another foreigner?
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  #27  
Old 03.09.2015, 14:23
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Re: Divorce or legal annulment?

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There is sometimes a big difference between what may appear logical to you and I and what line of reasoning the courts use.

Did anybody see any examples of court decisions in the newspapers? Given all the hype they print about immigration, surely they publish some facts every now and then? Or maybe they are embarrassed to say there has never been a single annulment under this clause 4 and they would be more embarrassed if the only annulment that was ever procured was initiated by another foreigner?
You don`t seem to be able to believe what all the posters have written.

After 5 years of marriage the only way out is divorce. An amicable mutually agreed divorce can be finalized in 2 months. Contested, they have 2 years of legal separation to settle their differences and come to mutually accepted settlement.

Consult a Swiss lawyer.

Divorce settlement decisions are not carried out "in court". The people employed to help the couple settle are called "arbitrators"- they charge the couple about Sfr300 per visit. One pays an extremely hefty fee for a judge to decide, if the couple cannot settle their differences. They share the costs of this fee. Which is
usually only done by the extremely wealthy levels of society (think millionaires) because of the cost.
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  #28  
Old 03.09.2015, 14:26
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Re: Divorce or legal annulment?

Art 105 Nr. 4 Has two clauses that must be both fulfilled. Circumventing "admission and residence" is only one. The other is no intention of living with the other one.


See:
https://www.alexandria.unisg.ch/export/DL/58384.pdf
and
http://ius.unibas.ch/uploads/tx_x4eq...bc4a4c05d9.pdf
and
http://www.ejpd.admin.ch/content/dam...07-12-01-d.pdf

At the moment it looks like only the husband is the one which does not want to live with the other one.
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  #29  
Old 03.09.2015, 14:30
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Re: Divorce or legal annulment?

My late wife and I did not (legally) live together for the first two years we were married (though we did live in the same canton).

Strangely, they never annulled our marriage, nor did they threaten to do so.

Tom
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  #30  
Old 03.09.2015, 14:33
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Re: Divorce or legal annulment?

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You don`t seem to be able to believe what all the posters have written.
I never said I don't believe them, I was simply asking for evidence such as links. Otherwise, it is hard to distinguish opinions from legal facts.
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  #31  
Old 03.09.2015, 14:36
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Re: Divorce or legal annulment?

So ask a lawyer.

But what's the big deal about annulment over divorce?

Meanwhile, I knew a couple here who just lived together for five years (not married), and when they separated, he had to give her half of everything.

So, most likely he'll have to pay in any case (that's what this is REALLY about, no?)

Tom
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  #32  
Old 03.09.2015, 14:46
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Re: Divorce or legal annulment?

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Art 105 Nr. 4 Has two clauses that must be both fulfilled. Circumventing "admission and residence" is only one. The other is no intention of living with the other one.
Well, lawyers could still have a field day with that phrase. Does it mean "no intention" of living together beyond entry to Switzerland, or "no intention" of living together beyond the point when the foreign spouse becomes eligible for some other form of residence?

Migrants do wait 3-4 years in desert camps to get a visa for Australia and apparently it is not uncommon for some people (both men and women) to go into a marriage, from the outset, having an attitude that they will try it for 3-5 years even if the spouse sincerely believed it was for life.

Thanks for those links. Not everybody here is a German reader, is there anything specific in those documents that stands out?

Quote:
At the moment it looks like only the husband is the one which does not want to live with the other one.
Sorry if the earlier posts gave that impression, it was not intended that way. It is the wife who prompted the whole thing by looking at forms of separation and the husband is looking at the legal situation.
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  #33  
Old 03.09.2015, 14:51
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Re: Divorce or legal annulment?

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So ask a lawyer.
Sometimes lawyers read EF

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But what's the big deal about annulment over divorce?
I'm not quite sure actually. Maybe he believes he will have a better financial outcome, maybe he thinks it will be quicker. Maybe it is just pride: if he gets an annulment, he can tell his family that the wife was never sincere and he was a victim.

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Meanwhile, I knew a couple here who just lived together for five years (not married), and when they separated, he had to give her half of everything.

So, most likely he'll have to pay in any case (that's what this is REALLY about, no?)
I already suggested to him that maybe they will retrospectively make him re-file 5 years of tax returns based on the single rate of tax, which is higher than the rate for couples.
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  #34  
Old 03.09.2015, 15:09
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Re: Divorce or legal annulment?

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Seems like it would be difficult to establish that the foreign spouse had "no intention of living with" your friend, given that she appears to have willingly done so for 5 years.
in spite of how much a prick you seem to be, i mean your friend seems to be.

maybe the best way is to get her naturalised and then an agreed divorce with an agreed division of the assets.
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Old 03.09.2015, 15:27
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Re: Divorce or legal annulment?

Was it a marriage of equals?

I am pretty sure that 99% of the people on here will say "No". They'll look upon the marriage as one where there is a tacit trade - one providing, in theory, a better standard of living, a better quality of life, a better future and more security - the other certain "services" which might be expected in a more "traditional" male dominated society.

It could be deemed as unreasonable from one side to expect that a consideration of residency was not made at the point of marriage by the other and that the consideration may have been a swaying factor in the marriage.

It may also be deemed unreasonable that on exposure to a society with a greater balance between parties that one party's views of the marriage may not change over time.

It may also be deemed unreasonable from both sides that certain emotions may remain constant throughout, and that the one party who may well have been "punching above their weight" than in a marriage of equals, may find the primary attachment wane over time and find themselves looking at a replacement.
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Old 03.09.2015, 15:36
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Re: Divorce or legal annulment?

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in spite of how much a prick you seem to be, i mean your friend seems to be.
It is a clear and objective question about something that is in the Swiss Civil Code. It is always disappointing to see how quickly some online discussions jump from the stated facts to juvenile name calling.

Despite the tone of that comment, I'm not tempted to really say anything more about the circumstances except that if you did know the full details you probably wouldn't be so biased in your conclusions. There is always more than one side to the story.
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Old 03.09.2015, 15:38
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Re: Divorce or legal annulment?

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There is always more than one side to the story.
You posted that ironically didn't you?
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  #38  
Old 03.09.2015, 15:45
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Re: Divorce or legal annulment?

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Despite the tone of that comment, I'm not tempted to really say anything more about the circumstances except that if you did know the full details you probably wouldn't be so biased in your conclusions. There is always more than one side to the story.
There certainly is and I expect that they be more PO if the penny dropped! Annulment means the marriage never existed... which goes to her property rights - her share of the pension fund, common property etc.... your friend wants it both ways....
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Old 03.09.2015, 15:58
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Re: Divorce or legal annulment?

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It is a clear and objective question about something that is in the Swiss Civil Code. It is always disappointing to see how quickly some online discussions jump from the stated facts to juvenile name calling.
If you have a question pertaining to the law - ask a lawyer. People on EF (myself included) are not here to provide you with free yet sound legal advice. Although, much of what has been said is pretty much what a lawyer specialised in Swiss divorce law will tell you.. I mean your friend.

Hourly rates range from 200.- to 500.- I would suggest to your friend that would be money well spend. My guess is that there is an aversion to divorce in case any alimony etc has to be paid (which FYI doesn't need to be if there were no children and the marriage is not deemed "life changing". As it only lasted 5 years, you can ruled that out. But then again, the law is not black and white, if she gets a good attorney they may make a case that it was on account of the fact she gave up her life and moved to Switzerland to be with him..)

If you want to find case law look on www.bger.ch or consult a "Kommentar" to the article in question. A "Kommentar" is a big fat book which basically explains what is to be understood by each article. They are available in all libraries. You probably won't find an identical match to the circumstances you or your friend are experiencing and that is the point where attorneys come in and argue for or against.

And yes - lawyers and attorneys do read EF. We also share the links with our colleagues for amusement...
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Old 03.09.2015, 16:06
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Re: Divorce or legal annulment?

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Meanwhile, I knew a couple here who just lived together for five years (not married), and when they separated, he had to give her half of everything.

Tom
Wait? what? Legally why?
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