“Family law is too focused on marriage” Accident on the run from the police in Sissach BL

Those who do not want to get married may be able to take out a so-called PACS in the future, a kind of ‘marriage light’. Parliament recently gave the green light for this in principle. Jonas Schweighauser, professor of family law and lawyer, explains in an interview why that would be an improvement – and who suffers from the current law.

How current is Swiss family law?
Jonas Schweighauser: If you look at the current family constellations, you have to say: our family law is no longer up-to-date. Because it is heavily focused on marriage. Today, however, we have an increase in non-marital partnerships, patchwork of families, a high divorce rate and complex care situations. There is no longer one family model, but many different ones.

What do you often encounter as a lawyer because family law is no longer up-to-date?
The difficulties are particularly acute among unmarried couples who have children and where one partner is economically dependent on the other. Among other things, there is no possibility to take out insurance under the social security law – in the event of a divorce, but also in the event of the death of a partner.

How does that work concretely? Is this at the expense of women who have reduced their workload? Or the fathers who are not allowed to take care of their children?
There are clear legal requirements with regard to care. However, there are fathers who feel that these are not performed correctly and are disadvantaged as a result. It is unclear to me how many fathers are actually affected, whether it is only a small group that is able to draw attention to their needs, or whether the number of those affected is greater. Now they want to go one step further, away from shared parental care to alternating care as the norm.

Has the federal court decided that in 2020?
No, that is not true. The Federal Supreme Court has never declared rotating custody as the norm. For the highest court, only the well-being of the child is decisive, and I think that is right. I see no need for action here. The big problem is that unmarried people put the economically weaker partner at a disadvantage. Today, most of them are women because they take care of the children more. Without marriage, they have no social security and no possibility to receive alimony. If there is no cohabitation contract, they also have difficulty staying in the apartment after a divorce. Married people are significantly better protected, even with the more restrictive federal legal practice.

You could say it’s your own fault. After all, they could have married or entered into a cohabitation contract. Why should the law change?
If a couple – and both people – consciously choose this, it is of course their own fault. But for many it is not a conscious choice. Some are completely surprised when they come to my law firm and learn the consequences of not being married. One problem is that many don’t want to deal with a possible breakup during a working relationship. Many couples find this uncomfortable. Few couples sign cohabitation contracts.

Is family law too focused on marriage?
Yes, as I said: if you want to adapt the law to social developments, you have to change that. Nowadays people are also forced into marriage who don’t really want it, because otherwise they wouldn’t be able to get insurance.

The Legal Commission of the National Council has recently given the green light for the introduction of a “Pacte civil de solidarité” (PACS), a kind of marriage light. Is this the right way?
It would be an improvement on the current situation. The hope would be that couples would get Social Security, for example. Figures from France suggest that there is a higher number of couples who do not want to get married but want to complete a PACS. Actually, in my opinion, it is not the right way.

What would be the right way?
It would be useful to look only at the actual living situation and to draw legal consequences from this. If a couple lives together and has kids together, that’s a fact to consider. Why should they be legally treated differently from a married couple with children? The same goes for a couple that has been living together for years or even decades. If you look at the actual living situation, you could take anyone – including those who don’t care about a cohabitation contract or PACS. But Parliament has now set the course for PACS.

It is still unclear what rights and obligations the PACS should contain. What do you think would be important?
There should be as few differences as possible between the PACS and marriage. There is no reason for deviating legal consequences.

Isn’t this a challenge and a weakening of the marriage?
That is what the opponents of the PACS say. I would dispute that. I am not at all in favor of abolishing marriage. If a couple wants to get married, let them! But those who do not want that must also be given the opportunity to protect themselves legally. At the same time, one should consider whether changes are also necessary in the marriage.

What are you thinking of?
Changes in procedural and divorce law can be considered. In alimony law we also have the situation in which the judge is increasingly taking over the function that the legislator actually has. That’s ugly.

How?
In the case of the child support law, parliament legislated very openly and left much to practice. Moreover, the Federal Supreme Court is increasingly adapting its practice without the legislature taking action or even refusing to take action. In my opinion this is unsatisfactory. When the second civil division of the Federal Supreme Court – five men between the ages of 50 and 67 – charts the course, one wonders whether this is correct from a separation of powers point of view.

If you say that family law is no longer up-to-date, what does that mean for the children?
It affects, among other things, the right of descent to the children. The principle “Mater semper certa est” – meaning that the woman who gave birth to the child is always the mother – no longer applies in all cases due to reproductive medicine. With fathers today we have the situation that the man is always regarded as the father. Neither the child nor the hereditary father can dispute this.

As a lawyer, have you ever had to deal with cases in which you have to say to a man who thinks he is the father: there is nothing that can be done legally?
Often the man even knows that he is the genetic father. But he cannot convert genetic paternity into legal paternity. These legal provisions date back to 1907, when paternity could not be proven. Today we are at a different point medically.

Who actually suffers from the fact that family law is not up-to-date?
Those who are economically weak and unmarried suffer in the first place. Second, the children: when there are conflicts, they suffer the most. In my opinion, the range of non-legal advice should therefore be expanded so that more amicable solutions can be found. The president of the court is not always the right person to mediate a serious custody dispute. Basel-Stadt is already doing well here, but other cantons have no offer yet.

One last question: do you really advise people you know to get married if they have kids?
I always tell my students: if a couple both remain economically independent and share the care of the children in an egalitarian way, they don’t have to get married. But I always ask the students how they imagine the future. Many want children. The women want to continue working, many of them around 60 percent. The men, on the other hand, do not want a workload below 80 percent. Here the descent begins. And as soon as there is an imbalance, they are better protected as married couples.