Until 1988, matrimonial law was a bastion of inequality in Switzerland. As early as 1979, Parliament supported the Federal Council’s project for partnership-based rules, but a conservative committee opposed it by launching a referendum. At the ballot box, a majority of men said no to the revision, but women voted in greater numbers and secured its adoption.
Until the 1980s, Swiss matrimonial law provided for clear roles: the man was the head of the family, the woman was responsible for the household. The woman therefore lost fundamental freedoms on marriage and needed her husband’s consent for many things such as buying a vacuum cleaner, opening a bank account or working outside of the home.
Marriage was “legally a bastion of inequality,” said CVP politician and women’s rights activist Judith Stamm, who joined the National Council in 1982 when it was discussing the new matrimonial and inheritance law. She was by no means alone in her opinion in the middle-class CVP. For her party colleague Jost Dillier, member of the Council of States for the canton of Obwalden and committee spokesperson, the old articles of the law no longer corresponded to “today’s understanding of legal equality, partnership and human dignity”.
“The law of yesteryear has become the injustice of today,” said Andreas Gerwig, president of the National Council committee,
in the 7 June 1983 edition of
CH-Magazine. “Today’s matrimonial law, which applies to all of the almost three million wives in Switzerland, dates from the 19th century when the woman was practically under the guardianship of the man.”
Down with historical barriers
The Federal Council’s draft wanted nothing less than the legal equality of women and men in marriage. However, it deferred two subjects to a later date: the place of origin, i.e. the commune from which a Swiss citizen obtains their citizenship rights, and the thorny issue of names.
In the National Council, the draft also found a majority
with the SVP. Theo Fischer from the canton of Aargau explained that the revision would better reflect the changed reality of everyday life, meaning women’s longer life span, the fact that many had jobs and the different phases of their lives, i.e. before, during and after caring for a family.
Spouses should in future resolve all problems together. In the words of the Thurgau social democrat Rolf Weber, the new matrimonial law was “the key step from guardianship and patronage to partnership”.
“The new law is no longer intended to stipulate the division of roles. It recognises household management and childcare as a full contribution to the upkeep of the family.”
CH-Magazin, 7 June 1983 edition
A fatherless society
The Council of States had already dealt with the issue in 1981. Emilie Lieberherr, a social democrat representing the canton of Zurich, addressed very different issues in the upper house: men could not freely change their roles in the existing patriarchal system of matrimonial law either. She also blamed many of the problems with young people on the ‘fatherless society’ – the opera riots were still fresh in everyone’s minds – explaining that fathers worked hard to earn a living and often had no time to help raise their children. Men needed to be freed from their corset too.
The court in the marriage bed
The Council of States made only minor adjustments to the draft. In the National Council, however, the debate was not so unanimous. Christoph Blocher of the SVP Zurich, together with a minority of his parliamentary party, fiercely opposed the new proposal, arguing that it was no longer clear who was in charge in a marriage. He saw in the revision “an almost panic-stricken fear” of the way in which the family had been previously run and argued that the courts would in future have to decide in the event of conflict.
However, the National Council firmly rejected his motion not to take up the matter at all. In the end, both parliamentary chambers approved the new rules by an overwhelming majority.
The poster published for the vote by the referendum committee…
The conservative right-wing ‘Committee against a misguided matrimonial law’ called a referendum. Its main argument was that all irresolvable conflicts would be decided by the courts, who would – so to speak – be in the marriage bed. On the pro side, on the other hand, the new matrimonial law fulfilled a mandate of the Federal Constitution. To implement equal rights, which had been anchored in the constitution since 1981, it was necessary to take into account the changed position of women in all key areas: in working life, in politics and also in the family.
… and the pro side.
Mobilising women
In the fight for the popular vote, Christoph Blocher had more success with his referendum campaign than in the National Council. On 22 September 1985, 52% of men rejected the bill. However, the exit poll revealed that women were not of the same opinion: 61% of them voted in favour. For the first time ever, their voting behaviour had differed so significantly from that of male voters that they helped a bill to be adopted that the majority of male voters had rejected. The percentage of ‘yes’ votes was 54.7%.
The new matrimonial and inheritance law came into force in 1988, a quarter of a century since a study committee of the Federal Department of Justice and Police had proposed abolishing the hierarchical organisation of marriage.
This complex subject has been the subject of many detailed regulations:
in 1991, the Federal Commission for Women’s Issues published a 200-page document explaining the legal effects of the new matrimonial law.
Links
Mobilisation, division, gender-specific voting behaviour:
an analysis of the federal vote of 22 September 1985.
In its
voting pamphlet, the Federal Council defended a new matrimonial and inheritance law, which it described as modern and balanced:
– The wife may manage and use her own assets.
– On dissolution of the marriage, each spouse is entitled to half of what their partner has saved during the marriage.
The History of Swiss family law in the historical dictionary