Key Points about Swiss Matrimonial Property Law
Marriage to a certain extent always involves a financial union. Accordingly, disputes over joint and separate assets in the event of divorce are particularly sensitive. To resolve such conflicts as fairly and uniformly as possible, Switzerland has marital property law. This article provides an overview of the regulations and specifics of property rights in Switzerland.
What Is Marital Property Law?
In Switzerland, marital property law provides a framework for all financial relationships within a marriage or partnership. It is enshrined in Articles 181 to 251 CC and governs the acquisition and distribution of assets and debts during, and particularly after, marriage. It defines and provides guidelines for the following questions:
- Which partner owns which assets?
- What constitutes separate property for each partner, and what are acquired assets or common assets?
- According to what criteria are marital property categories (separate property, acquired assets, and joint property) evaluated?
- What happens to marital property in case of separation?
- How are value increases during marriage divided?
- How are joint debts handled?
- Who inherits a partner's estate in case of death?
How Does Marital Property Law Work?
A fundamental component of marital property law is the division into different marital property regimes. The chosen regime determines how you and your partner manage specific assets during marriage. More importantly, it influences the economic consequences of divorce or death. Based on these regimes, the law provides standardized procedures for what are termed marital property settlements. This involves analyzing and negotiating whether and how marital property is divided between both partners.
How Does Matrimonial Property Law Divide Different Assets?
Within these regimes, various assets are assigned to different marital property categories:
- Separate property of Partner A or B: This includes all assets brought into the marriage by a partner, items used exclusively by them, as well as inheritances and gifts (Article 198 CC).
- Acquired assets of Partner A or B: These are assets acquired or earned during the marriage, including savings and benefits from social insurance and pension funds (Article 197 CC).
- Joint property: This refers to assets jointly owned and managed by both spouses.
What Are the Marital Property Regimes?
The law distinguishes between three marital property regimes: participation in acquired property, separation of property, and community of property.
Participation in Acquired Property
In Switzerland, participation in acquired property is initially the default marital property regime for all married couples, requiring no further contractual arrangements (Art. 181 CC). Under this regime, both separate property and acquired assets of each partner are managed separately during the marriage. There is no joint property in this regime.
However, in case of divorce, acquired assets are separated, offset against each other in a marital property settlement, and any surplus is divided equally between both partners. This subsequent division is termed a participation proposal (Art. 204-215 CC). Importantly, any debts owed by one spouse to third parties are not transferred.
According to Article 199 CC, you have the option to adjust the conditions of participation in acquired property to suit your personal situation through a marriage contract (referred to as modified participation in acquired property). For example, you can specify that certain acquired assets should be considered as separate property, or that in case of divorce, the division should not be 50:50 but, for instance, 30:70.
Separation of Property
Separation of property is a marital property regime chosen for personal reasons. In this case, the separation of property must be agreed upon contractually and confirmed by a notary (Art. 247 CC). There is no joint property or acquired assets under this regime; each partner manages their assets completely separately. In a marital property settlement, both partners receive their individual assets back. If there are any joint debts at the time of settlement, their division is clarified during this process.
By the way: Apart from a marital agreement, separation of property can also be carried out for other reasons. For example, separation of property can be requested by Partner A due to Partner B's insolvency (Art. 185 CC). Other special cases include a judicial order for marital separation (Art. 118 CC) or separation of property for the protection of the marital community (Art. 176 CC).
Community of Property
This marital property regime also requires a marriage contract to be drawn up and publicly authenticated. It involves three categories of marital property: separate property of Partner A or B, and joint property. Joint property includes assets not clearly designated as separate property of either spouse (Art. 222 CC).
Upon dissolution of a community of property, joint property is divided between you and your partner. Both partners are responsible for joint debts proportionally or entirely with their share of the joint property. Liability in such cases depends on the nature of the debts. Debts owed solely by one spouse to a third party are not transferable.
Special Cases: Limited Communities of Property
The Civil Code allows married couples to enter into a special form of community of property (limited communities of property). In these regimes, both partners still form an economic unit, but with certain restrictions.
In an acquisition community according to Article 223 CC, joint property is limited to acquired assets only.
In an exclusion community according to Article 224 CC, you have the option to exclude certain assets from joint property through contractual provisions. In this case, income from these assets usually does not belong to the community.
What Influence Does Marital Property Law Have on Inheritance Matters?
Marital property law also affects inheritance matters in the event of a spouse's death. If there is no marriage contract, the division of inheritance follows the provisions of participation in acquired property. In this case, during a marital property settlement, the surviving spouse is allocated half of the common acquired assets in addition to their separate property.
The separate property and the share in the acquired assets of the deceased spouse are considered part of the estate and are then divided between the surviving spouse and other heirs. Children and grandchildren typically inherit half of the estate. You can deviate from these legal provisions in a marriage contract and tailor the agreements to your individual preferences and changing family circumstances.
What Role Does a Marriage Contract Play in Property Matters?
Most people are familiar with marriage contracts, particularly in the context of divorce. In reality, such contracts often only become relevant upon the dissolution of the marriage or upon the death of a spouse. A marriage contract allows couples to adjust the marital property and inheritance consequences of a divorce according to their individual financial situations, aiming for fair resolution.
Divorce and associated legal disputes can often have devastating economic consequences for one or both partners. With a marriage contract, you can ensure that both partners maintain their financial independence after the end of the marriage and that the divorce proceeds as smoothly as possible.
How and When Can I Conclude a Marriage Contract?
You can draft a marriage contract during or before marriage (Art. 182 CC). In the latter case, the contract becomes legally binding only upon marriage. Additionally, a marriage contract must always be notarized with a public deed (Art. 184 CC). Amendments must be mutually agreed upon and also become effective only upon subsequent notarization.
Swiss marital property law itself is comparatively clear and accessible, allowing you to understand the general regulations even without legal knowledge. However, it's advisable to seek legal assistance from a family law attorney when choosing a marital property regime and drafting a marriage contract. This will facilitate the selection of an appropriate regime and, importantly, ensure that your marriage contract is legally valid. While there are countless templates available online, there is a risk that parties may unintentionally fail to meet certain formal requirements, rendering the contract legally invalid.
How Does Marital Property Law Divide Different Assets?
Within marital property regimes, various assets are assigned to different categories of marital property:
- Separate property of Partner A or B: This includes all assets brought into the marriage by a partner, items used exclusively by them, as well as inheritances and gifts (Article 198 CC).
- Acquired assets of Partner A or B: These are assets acquired or earned during the marriage, including savings and benefits from social insurance and pension funds (Article 197 CC).
- Joint property: This refers to assets jointly owned and managed by both spouses.
How Can a Family Law Attorney Assist You with Questions about Joint Custody?
During separations and divorces, child-related matters are crucial, and decisions should not be rushed. The future and personal development of children are significantly at stake. For parents facing this emotionally challenging situation, navigating the legal decision-making process can be complex. Given the far-reaching consequences of custody decisions, it is advisable to consult a family law attorney who can support you throughout the entire process. The attorney can advise you on the custody and care arrangements that are best suited for your family.
FAQ: Marital Property Law
Marital property law is part of the Swiss Civil Code and addresses all property-related matters concerning marriage and domestic partnerships (Art. 181-251 CC). It provides answers to questions such as which spouse owns which assets during and after a marriage. To this end, marital property law distinguishes between various categories of property and marital property regimes.
A marital property regime defines the property regulations that apply during and upon the dissolution of a marriage. There are three statutory marital property regimes, each considering different categories of property and dividing them according to different rules. In the event of a divorce, the marital property regime significantly determines how a property settlement is conducted.
The statutory (default) marital property regime in Switzerland is participation in acquired property (Art. 196 et seq. CC). This regime is automatically adopted by all couples who have not entered into a marriage contract for a different regime. Under participation in acquired property, both partners manage their assets independently, and in the event of separation, the acquired assets are equally divided between them.
In Switzerland, there are three legally recognized marital property regimes: participation in acquired property (the default regime), separation of property, and community of property. Couples can choose separation of property or community of property through a marriage contract and can also customize the participation in acquired property regime according to their preferences.
With a marriage contract, you can significantly influence the property and financial aspects of your marriage. A marriage contract allows for the free selection of a marital property regime and various modifications to the statutory provisions. Within the different regimes, you and your partner can thus retain control over the definition of property categories as well as the division of your assets and inheritance.
You can draft a marriage contract at any time before or during the marriage. However, this can never be done unilaterally: you and your partner must collaboratively draft the contract and agree to it with both signatures. Additionally, the contract must be notarized to become legally effective (Art. 184 CC).
There are ready-made templates for marriage contracts available on the internet that you can use for self-drafting. However, it is advisable to seek consultation or at least have the contract reviewed by a family law attorney. An attorney can help tailor the contract to your individual wishes and ensure its legal validity.