Before the 2021 change in case law, a non-working spouse over 45 when the shared household ended was generally not expected to return to employment. This rule no longer applies.
Except when caring for children under 16, courts generally consider full-time employment reasonable if it is actually possible.
Every case is assessed individually. Age remains important to actual employability, but is no longer the sole criterion. Health, language skills, past and possible future training, labour market conditions and personal abilities are also considered.
Example: Anna is 46 at divorce and did not work during her 10-year marriage. Under former case law, she would not have been expected to resume employment. The court now considers her health, previous qualifications, the relevant labour market and possible further training to improve her prospects.
The court first assesses whether resuming employment is actually possible using these criteria. If a spouse's former occupation has no vacancies or no longer exists, this does not automatically make employment impossible. Training and retraining opportunities are examined.
In one Federal Supreme Court case, a woman had qualified in IT 25 years earlier and worked briefly before caring for children and the household. Returning to IT was considered impracticable because substantial retraining was required. However, work in hospitality, retail or care was considered possible, and resuming employment was therefore deemed reasonable.
Courts often consider care work, for which an SRK course lasting only four months may qualify applicants and where workers are sought after, as evidence of realistic employment opportunities.
Once the court determines whether and to what extent employment is possible, it generally regards it as reasonable. Imputed income is then included in the maintenance calculation even if the spouse chooses not to work.
❓ Imputed income:
Imputed income is income the court considers a spouse capable of earning. It is included in maintenance calculations whether or not they take up employment, reducing the shortfall the other spouse must cover.
To determine imputed income, the court first identifies occupations with genuine employment opportunities. Where a spouse cares for children under 16, only part-time work is expected; after 16, generally full-time work. The article gives approximately 4'300 CHF net per month for a full-time care assistant. If the court considers this work feasible, it uses 4'300 CHF as income in the maintenance calculation, reducing the other spouse's contribution regardless of whether the position is actually taken up.
Only exceptionally is feasible employment nevertheless considered unreasonable, for example very shortly before retirement. A marriage with a lasting impact on economic circumstances may also be relevant in certain situations.
In short: The former rule that a spouse who did not work during marriage and was over 45 at divorce or the end of the shared household need not resume employment no longer applies. Courts assess each case using age, training, health and other factors to determine whether work is possible and reasonable.