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  #21  
Old 02.08.2021, 17:54
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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Well, that is not called moving on if they never got divorced

Has she contacted the "real/legal" husband and is he going to fully cooperate with the divorce proceedings?
Yes, she has, but to no avail, thus far.

The husband, who is a husband on paper only, he and Sandra having split up years ago, is absolutely in agreement with the divorce, as is Sandra. In that country, the laws about divorce are slightly different from here in Switzerland, but not markedly so, so that Switzerland is very likely to acknowledge the divorce, when it comes through.

Unfortunately, the still-husband is an unstable person, and is sometimes in one place, sometimes in another, and not easy to track down. That is, naturally, part of the reason for the couple not having been able to make their marriage work.

Although, two or three years ago, he stated and signed that he agrees to the divorce and wants it, he did not appear at Court at the set date. This has happened on more than one occassion, and then the whole process of getting a Court date (long waiting times) has to be started all over again. That had been going on for some time, unsuccessfully, when Covid interrupted, and many of the procedures around legal matters ground to a halt, at least for a while. Now, they've been re-started and... once again he didn't appear in Court, although he had given his assurance that he would.

This is very, very tedious. A lawyer there is looking into the ways of obtaining a divorce by only Sandra's presence in Court, and based on the husband's written agreement. This is, however, a much more complicated exception than it would be, in Switzerland.
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Old 02.08.2021, 17:57
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

She’s Swiss, can’t Swiss law apply?
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  #23  
Old 02.08.2021, 18:19
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

As to the question of paternity, this part, too, is good news. There is no doubt. There are ways to do pre-natal paternity tests, but they are invasive, and there's really no need to trouble the unborn baby. They can wait. In any case, as soon as it is safe to do so, Sandra and her husband-to-be will do the DNA tests, to prove that he is the father of the baby. That part is all clear and easy to get done.

The same is true of the birth certificate, where Sandra will register the baby's father correctly. That, too, is a matter of easy formality at the time of the birth. And as soon as she is free to marry, they will marry, and he will live with her in Switzerland, and also work.

About the KESB: they may become involved, but I doubt it, since the residence of mother and baby will be established, she will be earning, and in a safe environment, and both mother and baby will have medical insurance.

Of course, if the new husband has been allowed into Switzerland by then, and in any event as soon as he is allowed to settle here, he, too, will have accommodation and medical insurance, and probably very soon work, as Sandra's network is already preparing for this.
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Old 02.08.2021, 20:20
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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She’s Swiss, can’t Swiss law apply?
The divorce is already pending abroad where they both lived, that's definitely foreign law and courts.

They may be able to withdraw and restart it here, but that won't speed things up.
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The same is true of the birth certificate, where Sandra will register the baby's father correctly. That, too, is a matter of easy formality at the time of the birth. And as soon as she is free to marry, they will marry, and he will live with her in Switzerland, and also work.
Under Swiss law the husband is the father, doesn't matter if they didn't even see each other for years. For the time being only the husband can challenge that, but even then the default applies until the court verdict.

What you describe may get her even deeper in the brown stuff, lieing on an official document sounds awfully like fraud or similar.

Again, provided Swiss law applies in the first place (it probably does to this part as she's here, but IANAL).
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Old 02.08.2021, 20:42
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

She definitely doesn't intend to lie at any point. She will declare the father of the baby truthfully, and ensure that his name is recorded at birth.

As far as I had understand the Swiss law (although my knowledge might be out of date), the still-husband is assumed to be the father of a child born during the marriage or within 9 or 10 months of the divorce. However, that is only an assumption, a default for all concerned, until someone stands up to say that that default does not apply in a particular case. When the parents state the truth (and if need be, do a DNA test) then the truth is also recorded.

Edit: I'm reading up about this, starting here: https://www.ch.ch/en/how-acknowlede-paternity/
and here
https://www.fedlex.admin.ch/eli/cc/2...2/part_2/tit_7 (German)
https://www.fedlex.admin.ch/eli/cc/2...2/part_2/tit_7 (English courtesy translation)

Edit: Oh, dear, I found this, which pretty much sets out the situation.
https://www.familienleben.ch/kind/al...erkennung-1275
It's dated 2009... I wonder if anything has changed since then.

Also wonder how this will work out internationally, when the still-but-soon-to-be-ex-husband has no interest in any part of this, and hasn't been seen for a long time, not even to bother to come to his own divorce hearing, and certainly will not participate in any Swiss procedure of un-recognising a child who has nothing to do with him. Mmmm... have to see whether there is a document in the other country which can do something about this, together with paternity tests.

Last edited by doropfiz; 02.08.2021 at 21:11.
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  #26  
Old 02.08.2021, 20:43
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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Under Swiss law the husband is the father, doesn't matter if they didn't even see each other for years.

Ok I am confused now. I thought that there is only one potential child involved (the one in the womb, I name him/her, womb-child). I assume she is pregnant from the new guy and not from the previous husband. So the womb-child's father is clearly the new guy, once DNA analysis after birth confirms it all



Does Sandra have another child, from the previous husband?
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  #27  
Old 02.08.2021, 20:52
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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Ok I am confused now. I thought that there is only one potential child involved (the one in the womb, I name him/her, womb-child). I assume she is pregnant from the new guy and not from the previous husband. So the womb-child's father is clearly the new guy, once DNA analysis after birth confirms it all
Doesn't work that way.

The soon to be ex-husband needs to first object to being the father, and demand a DNA test.

Only HE can do so.

Tom
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  #28  
Old 02.08.2021, 21:08
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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She’s Swiss, can’t Swiss law apply?
If divorce procedures haven't started anywhere else, theoretically it should be possible for her to file for divorce here. The next if is: She needs solid proof that she is separated for two years. If she can do that, she can get divorced without the husband even agreeing to it.

Loads of ifs only a lawyer can confirm. I would definitely go see one about this but then again I would not be in this situation to start with. But as I'm a true believer in not crying over spilt milk, she should have this checked out. An other thing that might get in the way of this solution is if Switzerland does not divorce marriages struck up abroad the same way it's done with those struck up here.
Plus there better be no money, assets, houses, other children involved. Because in that case this solution is out.

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Ok I am confused now. I thought that there is only one potential child involved (the one in the womb, I name him/her, womb-child). I assume she is pregnant from the new guy and not from the previous husband. So the womb-child's father is clearly the new guy, once DNA analysis after birth confirms it all
Does Sandra have another child, from the previous husband?
You're one who reads only diagonally? By law a child is the husbands child (for 10 months after the divorce) until proven differently. It must be proven as I wrote "And btw. the child will be considered the now-husband's one even if she is divorced and/or remarried by the time of birth, so more legal procedures are awaiting her." Several others wrote the same after me, so it was difficult to overlook.
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  #29  
Old 02.08.2021, 21:28
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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Ok I am confused now. I thought that there is only one potential child involved (the one in the womb, I name him/her, womb-child). I assume she is pregnant from the new guy and not from the previous husband. So the womb-child's father is clearly the new guy, once DNA analysis after birth confirms it all



Does Sandra have another child, from the previous husband?
Sandra has no other children, only the womb-child.
Her still-married-to-husband has no children.
Her current and wants-to-marry-her partner has no other children, only the womb-child.

The legal matter that Curley pointed out, about the still-married-but-non-biological-father being names as the child's father, is startlingly set out in the law, and it seems not even a DNA test proving paternity can change that! So much for anyone's rights, whether the soon-to-be-ex husband, the new and eager biological father, the mother and the child. Whew!
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Old 02.08.2021, 21:31
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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If divorce procedures haven't started anywhere else, theoretically it should be possible for her to file for divorce here. The next if is: She needs solid proof that she is separated for two years. If she can do that, she can get divorced without the husband even agreeing to it.
...
An other thing that might get in the way of this solution is if Switzerland does not divorce marriages struck up abroad the same way it's done with those struck up here.
The idea of seeing whether the divorce could be done from here, and whether that would in any way speed anything up (somehow doubt it)... I suppose that's worth looking into... I don't think Sandra had considered that, before. Thank you for a suggestion for a different approach.

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Plus there better be no money, assets, houses, other children involved. Because in that case this solution is out.
Fortunately, or sadly, depending on one's perspective and the application, neither the of the married partners involved owns anything.
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  #31  
Old 02.08.2021, 22:02
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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The legal matter that Curley pointed out, about the still-married-but-non-biological-father being names as the child's father, is startlingly set out in the law, and it seems not even a DNA test proving paternity can change that! So much for anyone's rights, whether the soon-to-be-ex husband, the new and eager biological father, the mother and the child. Whew!
Simply because the law pre-dates DNA testing availability?

Also.. throughout history and this regardless of the country and culture, society will do everything possible to put the responsibility and upkeep of children in the hands of the individual (parents) rather than at the expense of society.
Thus by establishing the married husband as the lawful father of the child (regardless of whether he is the biological father) society/law is ensuring that the child is provided for.

I feel really sorry for your friend.
She might have lived in a difficult situation for years and may have grasped a chance at happiness. All this difficulty seems like a very high price to pay for wanting to be happy.
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Old 02.08.2021, 22:14
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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The legal matter that Curley pointed out, about the still-married-but-non-biological-father being names as the child's father, is startlingly set out in the law, and it seems not even a DNA test proving paternity can change that! So much for anyone's rights, whether the soon-to-be-ex husband, the new and eager biological father, the mother and the child. Whew!
It CAN be changed BUT:

a) the soon to be ex has to agree

b) the soon to be father has to agree

c) the soon to be mother has to agree

d) the DNA tests must prove that the paternity of soon to be father

Not cheap, not easy.

Tom
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  #33  
Old 02.08.2021, 22:21
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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Also.. society will do everything possible to put the responsibility and upkeep of children in the hands of the individual (parents) rather than at the expense of society.
Thus by establishing the married husband as the lawful father of the child (regardless of whether he is the biological father) society/law is ensuring that the child is provided for.
And this is the odd part, isn't it? Here we have two men:
  • One is a non-biological, absent, disinterested man, who has had nothing to do with the pregnant woman for several years, and who has no interest in anything to do with the child, doesn't care whether the woman has a child or not, and has no means to contribute to the child's life (in probab.y any way), let alone financially.

  • The other is the biological father who is delighted that his baby is on the way, who loves the mother, who wants to take on the full responsibility for his child and who hopes to marry the mother (once her divorce is through) and who is altogether a much better deal for society, to ensure that the child is provided for.
It is hard to believe that this is not possible without the cooperation of the soon-to-be-ex-husband, who will have no knowledge of this aspect of the law in Switzerland, and even if anyone could find him for long enough to explain it to him, he certainly will have no interest in taking upon himself any work for any Swiss procedures.

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I feel really sorry for your friend.
She might have lived in a difficult situation for years and may have grasped a chance at happiness. All this difficulty seems like a very high price to pay for wanting to be happy.
Thank you very much for your kindness and compassion.
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  #34  
Old 02.08.2021, 22:22
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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It CAN be changed BUT:

a) the soon to be ex has to agree

b) the soon to be father has to agree

c) the soon to be mother has to agree

d) the DNA tests must prove that the paternity of soon to be father

Not cheap, not easy.

Tom
I'm sure they can supply b), c) and d), but think there is a very low chance of obtaining a) - not because the soon to be ex will want to claim paternity, but because he really couldn't care a jot, and wouldn't be bothered to do anything, as he wouldn't see, in any way, that it had anything to do with him.
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Old 02.08.2021, 22:27
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

After reading all the posts properly, I must say I am so glad that I did not breed
Good luck to all the decent people out there. Hope things eventually work out for Sandra.
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Old 03.08.2021, 09:47
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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And this is the odd part, isn't it? Here we have two men:
  • One is a non-biological, absent, disinterested man, who has had nothing to do with the pregnant woman for several years, and who has no interest in anything to do with the child, doesn't care whether the woman has a child or not, and has no means to contribute to the child's life (in probab.y any way), let alone financially.

  • The other is the biological father who is delighted that his baby is on the way, who loves the mother, who wants to take on the full responsibility for his child and who hopes to marry the mother (once her divorce is through) and who is altogether a much better deal for society, to ensure that the child is provided for.
It is hard to believe that this is not possible without the cooperation of the soon-to-be-ex-husband, who will have no knowledge of this aspect of the law in Switzerland, and even if anyone could find him for long enough to explain it to him, he certainly will have no interest in taking upon himself any work for any Swiss procedures.
FWIW in my personal experience, Swiss law and the Swiss divorce system doesn't know how to deal with parties who refuse to engage with the process. I can recommend a good family lawyer if that would help
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Old 03.08.2021, 14:51
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

Whew... what a mess!


Just wondering if some social engineering pressure could be brought to bear here. Like:

  • Contact the Not Father to tell him that under Swiss Law, he is responsible financially for womb-baby.
  • Hint that the Swiss authorities will likely come after him via his local authorities for maintenance... and soon-to-be-mum can't easily do anything to stop them...
  • Unless, of course, he does something himself: accellerate his part of the divorce proceedings and officially demand a DNA test.



Some of this version may be true, some may be using heightened implication as a lever. But you need to give the Not Father a reason to act in his own interests.



Kind regards






Ian
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Old 03.08.2021, 17:44
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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Whew... what a mess!
Just wondering if some social engineering pressure could be brought to bear here. Like:
  • Contact the Not Father to tell him that under Swiss Law, he is responsible financially for womb-baby.
  • Hint that the Swiss authorities will likely come after him via his local authorities for maintenance... and soon-to-be-mum can't easily do anything to stop them...
  • Unless, of course, he does something himself: accellerate his part of the divorce proceedings and officially demand a DNA test.
Some of this version may be true, some may be using heightened implication as a lever. But you need to give the Not Father a reason to act in his own interests.
Kind regards
Ian
You seem to be serious, so do try to contemplate why
  1. A disengaged legal father-to-be in a "non-EU country" would in any way be impressed by stuff he doesn’t give a F about even if it could be called to his attention
  2. How Swiss judiciary measures are supposed to make him prick up his ears
You are perhaps aware that it’s not a terribly rare case where divorced Swiss mothers have their legally obtained alimony/child care payments “advanced” by their commune? Normally, the Gemeinde will try to get the errant ex-husbands to cough up via the usual channels. Doesn’t work that well if they “go native” again.
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Old 03.08.2021, 20:11
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

You know this. I know this. But does he?


That's why I suggested using it as social engineering to add perceived leverage.


Many people outside Switzerland are afraid of their governments and overestimate the power they wield.


Kind regards


Ian
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Old 03.08.2021, 23:52
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

it might help to name the non-EU country.
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