Family law: Bern is preparing the revolution

“To separate from a person with whom we had children is one of the most complicated moments of life there is. The ensuing procedures should be carried out so as to avoid climbing. However, this is not always the case today. It is urgent and necessary to better adapt the practice. ” This observation is posed by Christian Dandrès (PS/GE). He is at the origin of One of the postulates having triggered the drafting ofA large report on the question.

Published before summer, the latter will not remain a dead letter, since the Federal Council has decided to open Family law work. What upset the way separations are treated. With the aim of this new orientation: the needs of the child.

The project that the services of Beat Jans, Minister of Justice and the Police must draw up, is expected for the end of 2026. Cantons and professionals will be associated with preparatory work before it goes to consultation. But the main orientations are already known. They aim to correct the weaknesses of the current system, highlighted in the report.

The main lines of family law reform

In this document of almost 100 pages, we see how practice – which differs depending on whether it is married or cohabitation couples – is out of step with new family structures. Indeed, many children are born out of marriage and others do not live with their two parents on a daily basis. In order not to fix anything, the practice also varies from one canton to another.

Currently, depending on the law in force, two different entities decide on issues concerning children. The authority for the protection of the child and the adult (APEA) for the cohabiting cohabits and the civil court for the spouses. This includes the attribution of parental authority, the organization of the guard, Participation in care or maintenance contribution.

“The different competence according to the civil status of the parents is not in the interest of the child and is therefore no longer topical or justified,” write the authors of the report, which is based on the results of a survey carried out with specialists in the various cantons.

Further on, they specify: “The lack of coordination between the court and the APEA also leads to redundancies. In addition, the working practices and methods of these authorities are different. ” The report concludes that “the current system is therefore complex, expensive, slow and ineffective”.

“The Federal Council stopped halfway”

Based on this observation, here is how Berne intends to improve the situation. At first, the Federal Council wishes to unify skills. Then, he wants to set up instruments to find an amicable solution, in order to strengthen the relationship between parents and the child.

To defuse conflicts more quickly, he relies on faster and simpler legal proceedings. The judges will first have to seek an agreement with family members. If they do not succeed, a procedure – in principle oral – must make it possible to settle family relationships and thus to lighten the situation.

Finally, he wants to bet on interdisciplinarity. This must be ensured by the involvement of experts from different disciplines, such as psychologists or social workers.

“Seeing that it finally moves on family law is a good thing,” reacts Christian Dandrès. And to salute the abolition of shared jurisdiction between the civil court and the APEA, the acceleration of processes, and support for amicable settlement solutions. On the other hand, he believes that the Federal Council remained halfway.

And if the word of the Genevan is important in this file, it is because he is expressed in name Future Familyan association which brings together fifteen organizations and institutions, such as the popular family movement, Caritas, the Protestant social center, the University of Geneva or the official youth foundation.

Mediation, an asset during complicated separation

What are the points on which the government should have been more progressive?

“He unfortunately rejected the centerpiece of our proposal, namely the establishment of a conciliation body upstream of the court,” explains Christian Dandrès. “However, the latter – thought on the model of the conciliation commission in terms of leases and rents – would make it possible to find lasting agreements, before Families tear off At the court stadium, ”adds the man who works as a lawyer for ASLOCA. “We must also be able to count, if necessary, the support of professionals outside the justice.”

For him, no judicial body can replace such a device. “From the moment you are before the judge who contrasts your case, you can no longer speak freely, because you know that what you say can potentially be retained against you.”

The other strong point of this conciliation commission would have been to be able to invite, if necessary, people other than parents, likely to defuse conflicts. “Sometimes the resolution of the conflict may go through a solution including grandparents or the new spouse or the new partner.”

The other regret of the future family is that the Federal Council rejects both the creation of a specialized family jurisdiction and the constitution of family courts composed in an interdisciplinary manner throughout Switzerland. Each time, this is refused on the grounds that this would encroach on the skills of the cantons.

“In this case, we see that federalism is a brake,” reacts Christian Dandrès, who does not lose hope. “It remains a year and a half before the project was put in consultation. And once the message is ready, the Parliament can seize it. However, I know from experience that, on this kind of theme, parliamentarians are more open to changes than administration. ”

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