In principle, there is no obligation to divorce within a particular period after a de facto separation. If both spouses want to wait or do not want a divorce at all, they need not divorce. However, some legal pitfalls must be considered.
Taxes
A married couple living separately must also be assessed separately for tax. De facto separation is regarded as beginning when at least one spouse no longer intends to maintain the marital union and the shared household has ended (in Lucerne, this formula is reflected in cantonal tax law: LGVE 1987 II No. 6). Some cantons also require the separation to be lasting; Bern, for example, requires 1 year. The relevant status is that on 31 December. If you are separated on that date, you are taxed separately for the entire year.
Inheritance law
Divorce ends statutory inheritance and compulsory portion entitlements. You no longer have to leave your former spouse a compulsory portion, and without a will they no longer inherit automatically. A former spouse inherits only if you expressly benefit them in a will.
This is not the case with a de facto separation. Your spouse remains entitled to inherit and to a compulsory portion. The compulsory portion means you cannot remove their entire inheritance entitlement through a will.
Pensions
On divorce, pensions are calculated individually rather than subject to the married couple's cap. This is not the case with a de facto separation: pensions continue to be paid as during the marriage. An exception applies if a judge terminates the shared household, in which case the cap is also removed.
A de facto separation does not change entitlement to a widow's or widower's pension.
Judicial separation as an alternative
Switzerland offers judicial separation as an alternative to divorce. It was introduced mainly for people unable to divorce for religious reasons, but is available more generally. The same prerequisites apply as for divorce: either both spouses agree and submit a joint petition for separation, or they must wait for two years of de facto separation before one spouse can bring an action. Judicial separation has the following consequences:
- As with divorce, the combined pension cap no longer applies.
- Authority to represent the marital union ends when the spouses no longer live together.
- Separation of property takes effect.
- Inheritance and compulsory portion entitlements remain.
- The mutual duty of maintenance continues.
In short: If you prefer to live separately rather than divorce, you may do so. However, even with a de facto separation, you must be assessed separately for tax. Inheritance and compulsory portion entitlements otherwise remain, and pensions generally continue as during marriage.