NZZ, January 27, 2011, by Katharina Fontana
Difficult questions surrounding the maintenance obligations of divorced men:
Justice Minister Sommaruga wants to improve the financial situation of divorced mothers. A possible intervention in the subsistence level of men obligated to pay maintenance is under discussion.
It was bad news for men, and especially for divorced fathers, that they received from Bern two weeks ago: Justice Minister Simonetta Sommaruga does not intend to submit the bill on joint parental custody to parliament just yet (NZZ, January 13, 2011). Instead, the legislation is to be expanded to include post-marital maintenance obligations. Given the complexity of the issues involved, the project is very time-consuming, which is likely to delay the introduction of joint custody.
Dispute over maintenance payments
This approach has been met with complete incomprehension by men's organizations. Markus Theunert, president of the umbrella organization of Swiss men's and fathers' organizations, criticizes the fact that the new Minister of Justice is resuming the joint custody proposal after years of preparatory work as an affront. Oliver Hunziker, president of the Swiss Association for Shared Parenting, is also very perplexed by the Justice Department's change of course. Linking custody rights with child support issues will lead to a new battle between men and women – with the risk that the proposal will ultimately fail completely.
For the divorced woman, this means that she must cover any shortfall herself and figure out how to finance her own living expenses and those of her children. She will often have to rely on social assistance.
The regulation stipulating that the shortfall is unilaterally transferred to the woman instead of being divided between both ex-partners has long been criticized. It is incomprehensible, argues Anna Hausherr, General Secretary of the Swiss Association of Single Mothers and Fathers, why the burden of fighting for this money should fall solely on single mothers, who are already under considerable strain. The Federal Supreme Court recently echoed this sentiment, urging the legislature to find an alternative solution – a task the Justice Minister now intends to undertake.
While men's organizations acknowledge that the current system is unsatisfactory and places considerable demands on mothers, they argue that simply increasing the financial burden on divorced men and denying them even a basic living allowance, forcing them to rely on social assistance, is not a solution either, according to Oliver Hunziker. He believes this would significantly harm men's motivation to work.
Recovery of social assistance
Dividing the missing amount between both ex-partners would also relieve women in another respect and place an additional burden on men. Currently, a woman who relies on social assistance after a divorce is generally required to repay the benefits if she later acquires any assets (e.g., an inheritance). Divorced men, on the other hand, are financially free after alimony payments to their ex-wives and children cease and can do whatever they want with their money. This regulation is considered unacceptable by women's organizations, as well as practitioners and academics. From their perspective, it would be right, for reasons of equal treatment, to also require men to contribute to the repayment.
fon. ⋅ It is sometimes criticized by men that divorced women today may live too long at the expense of their former husbands. Even if this accusation in its sweeping form is not entirely accurate, it is often the case that divorced men have to pay alimony not only for their children but also for their ex-wives for years. This is generally the case if the marriage lasted more than ten years or if there are children from the marriage. At the same time, the woman is expected to contribute to her own support to the extent that it is reasonable. However, if the woman did not work during the marriage and is over 50, she is not expected to return to the job market, explains Regina Aebi, Professor of Private Law at the University of Lucerne. The same applies if there are young children to care for: According to the Federal Supreme Court, a mother is under no circumstances required to send her child to daycare in order to be able to work. Only when the youngest child reaches school age is the mother generally expected to work part-time, and when the child is 16 years old, full-time.