While I understand that there is a large amount of jurisprudence on this matter and current practice seems to be such, I would like to bring to the attention of the Courts and Parliament a few points which make the current interpretation and application of the law less than satisfactory with regard to the custody of children and the financial split upon separation (and ultimately divorce):
It is clear that the best interests of any child are served by spending a more or less equal amount of time with both parents. It would therefore make most sense if the ?Obhut? during a separation was split allowing the child/children to live with both parents and avail of their rights as set out under the UN Convention on the Rights of the Child, not to mention the UN Convention on Human Rights to which Switzerland is a signatory. The only cases where this should not be provided are where there is a clearly proven and demonstrable danger to the child/children. (i.e. one party cannot just make unfounded allegations/or lack trust in order to ?win? custody).
2. In general the confrontational position the law/courts/lawyers ?force? parties to take, is not optimal. We should be looking for solutions where everyone benefits as much as possible and everyone loses as little as possible. The current system makes ?winners? and ?losers? and effectively forces parties to bring out as many nasty, and in many cases, untrue arguments in order to ?win?. Since society must be aiming for amicable solutions and hopefully a decent, (though unmarried), future between the 2 parties, especially where children are involved, a more reconciliatory system would better serve this purpose.
1. I can fully understand the rationale behind the current method used, which is based on a time in history where Women tended not to work and therefore in the event of separation would clearly have limited access to finance their lives, thus making the breadwinner (in the past usually the man) support the wife and children. This is however not in line with the world we currently live in where Women have as much access to work and high-paid jobs as men. Indeed each situation needs to be looked at in isolation, as opposed to a one-size-fits-all approach.
2. In essence where both the husband and wife work full-time jobs the amount provided by each party towards the marriage prior to the breakdown in the marriage should clearly more than suffice for the party who remains with the marital home and children. This, given that the amount put towards the house also covered many items for this party such as food, utility bills etc which will no longer be required so the costs of maintaining the household will be less. In fact it is the person who is removed from the marital home who will actually incur further expenses, since he/she will have to find another suitable place to live, furnish this place and replace countless items which are left in the marital home, including items required for children when they are allowed to visit this party, food, utility bills etc.
3. Once ?expenses? are covered, currently the remainder is currently bizarrely split 2/3:1/3 for the person who remains with the children. Clearly this is essentially giving them extra money and actually making it virtually impossible for the other party to survive in any semblance of the life they had prior to the breakdown of the marriage. This also means that when children do come to visit, this party is massively limited in what they can afford to do with them and in general in their daily lives. Since the marriage contract states that each party must provide to the marriage what they can and what is necessary, this split makes limited sense, as what is necessary is not actually what is being considered in the excess amount after expenses. The current system incentivises parties to increase their expenses as much as they can in order to get as much out of the other party as possible, even if this does not correspond with reality and the 2/3:1/3 split seems to be a random number not based on the reality that we live in today. In fact the remaining funds should be left with the party who earns this money; otherwise that party is essentially going to work to earn money for someone else who they no longer wish to be married to.
4. The purpose of a separation or divorce is not to unduly penalise one party or the other, but rather to recognize that the 2 parties for whatever reason no longer wish to remain married - not to ruin one party to the benefit of the other. The current system unduly and unnecessarily creates a system whereby one party benefits massively, and the other is left with very little.
5. The argument that the parent who has the ?Obhut? is being financially compensated for looking after the child is a non-argument for the following reasons:
a. Looking after your child should be a joy not a burden and should not be considered to be work for which you require financial compensation;
b. The person awarded the ?Obhut? in the current system asked for it, so essentially where both parties request the ?Obhut?, the one who does not get it is punished twice ? once because they do not get to see their children, and twice because they then have to pay extra money for this, even though they would happily look after their children.
c. Both arguments above point tow