Refusal to Ratify a Convention Providing for Joint Exercise of Parental Authority After Divorce

Facts

The Federal Tribunal was seized with an appeal against a judgment of a cantonal court that had refused to ratify a divorce settlement providing for the joint exercise of parental authority over the children of the divorced couple. The central issue was whether Swiss law allows the attribution of joint parental authority to divorced parents.

Considerations

The Federal Tribunal dismissed the appeal. It considered that Art. 297(3) CC, which provides that in the event of divorce, parental authority belongs to the spouse to whom the children are entrusted, does not allow the maintenance of joint parental authority after divorce. This interpretation is confirmed by the legislative history, which shows that the legislature deliberately rejected a proposal to introduce this possibility.

The Federal Tribunal also rejected the argument that the attribution of joint parental authority would be necessary to ensure equality between the parents. It recalled that it is for the legislature, and not the case law, to provide for equal treatment in the field of family law.

Although the joint exercise of parental authority is not permitted after divorce, the Federal Tribunal specified that nothing…