Prenuptial Agreement: Legal Situation and General Information
To conclude a marital contract at the time of marriage may seem like a total mood-killer. However, a marital contract provides a straightforward way to safeguard a couple's assets and prevent disputes over finances during or after marriage. In this article, you will learn what a marital contract regulates, how you can modify it, and why you should consult a lawyer specializing in family law for this purpose.
What Does a Marital Contract Regulate?
Frequently, it is assumed that a marital contract is only significant in the event of divorce. However, this is not the case. While a marital contract is indeed very useful in such situations, it serves other purposes as well. Primarily, it aims to regulate the matrimonial property regime, often opting for separation of property (Gütertrennung). This contract also serves as proof of ownership for the couple's assets during marriage.
Marital Contract and Inheritance Issues
Through a marital contract, it is ensured who will inherit the assets, especially in the event of one spouse's death. If no marital contract is in place, Swiss law stipulates that the surviving spouse transfers half of the assets to the children and grandchildren. This can sometimes lead to disputes and necessitate the sale of assets by the remaining spouse to settle the share of the heirs. In a marital contract, inheritance rights can be agreed upon differently, allowing, for example, the surviving spouse to dispose of the assets until death.
Marital Contract and Entrepreneurship
A marital contract can also be beneficial for spouses where one owns a business. In such cases, it's advisable to specify in the contract which assets are necessary for the business operations, excluding them from the calculation of marital assets. This way, the spouse of the entrepreneur has no claim to the business assets, thereby protecting the company from the consequences of potential disputes between the spouses.
Marital Contract and Third-Party Judicial Proceedings
A marital contract can also protect a spouse from judicial proceedings involving certain assets of the other spouse. For this, the assets must be listed properly. If ownership of a particular asset cannot be proven, both spouses may be deemed legally responsible.
Marital Contract and Divorce
Undoubtedly, a marital contract is particularly useful in the event of divorce, as it allows for a more conflict-free and quicker resolution of separation. Potential issues such as division of assets and inheritance that may arise during divorce are already addressed in the marital contract. Therefore, a marital contract significantly reduces the likelihood of a contentious divorce that may require judicial intervention.
Marital Contract under Foreign Law
It is also possible to conclude a marital contract under foreign law (Art. 52 et seq. PILA). This may be advantageous, for example, if one spouse holds foreign citizenship or if the couple marries abroad and intends to settle in Switzerland. The question then arises as to which law applies. Is it the law at the current place of residence? The law of the citizenship of both spouses? Or the law of the country where the marriage was contracted? Generally, this is a complex and highly individual matter. Therefore, seeking professional advice from a family law attorney is advisable.
Marital Contract under Foreign Law and Swiss Law
Significant differences can exist between legal systems of different countries, requiring each case to be examined and assessed separately. For instance, spouses may have concluded a marital contract under a law that Swiss law does not recognize. In divorce proceedings, a Swiss court may apply foreign law by judicial decision, potentially complicating the matter. (Art. 62 PILA) If a marital contract is concluded abroad and the couple then moves to Switzerland, generally the law of the country where the contract was concluded applies.
When is a Marital Contract under Foreign Law Advantageous?
The choice of a marital contract under foreign law should be carefully considered, as divorce proceedings can become complex. It may be advisable to opt for a marital contract under foreign law if the couple residing in Switzerland intends to return to their home country. In any case, consulting a family law attorney is recommended to find the best solution for the couple.
Can You Modify a Swiss Marital Contract?
A marital contract can be amended or terminated at any time during the marriage. According to the law, spouses are allowed to change their matrimonial property regime. This may be justified, for example, by changes in the situation of one spouse, such as acquiring substantial assets or the birth of a child.
Conditions for Amending a Swiss Marital Contract
A marital contract can only be partially or completely amended or terminated with the consent of both spouses. Under Swiss law, one spouse cannot unilaterally decide on contract amendments. However, Article 185 CC grants spouses the right to request separation of property against the will of one spouse through a court.
How Can You Amend a Swiss Marital Contract?
Amendment of the contract is possible at any time after marriage. (Art. 187 CC) Subsequently, the spouses must visit a notary office to obtain an official document. The costs for amending a marital contract amount to approximately CHF 300 to 500 Swiss francs. Changes must generally be made in the "family interest," meaning they should not harm any family member.
When Should You Conclude a Marital Contract?
Contrary to potential expectations, it is never too late to conclude a marital contract. You can draft one even several years after marriage. This can be useful if the financial situation of one spouse changes or to settle inheritance matters in advance. If a couple decides on a marital contract after years of living together, an asset inventory must be created and notarized.
Ensuring the Validity of Your Marital Contract in Switzerland
A marital contract must meet specific formal criteria to be valid. Firstly, it must comply with Swiss legal principles. Secondly, it must be an official document, i.e., notarized and signed by both spouses. (Art. 184 CC) The same requirements apply to amending or terminating a contract. Failure to meet these conditions renders the contract invalid.
How a Family Law Firm Can Assist You
In Swiss law, questions regarding asset division and separation are strictly regulated in a marital contract. Certain conditions must be strictly observed to avoid the contract's invalidity. Moreover, each case has its own peculiarities. While free sample contracts can be found on the internet, it is strongly recommended to engage a family law attorney in drafting the marital contract. The attorney can also advise the couple or future spouses on managing their joint assets.
FAQ: Marital Contract
A marital contract in Switzerland determines the matrimonial property regime of the spouses. It can establish either separation of property (Gütertrennung) or, less commonly, community of property (Gütergemeinschaft) as the regime governing the spouses' assets. Specific points can also be addressed in the marital contract, such as the exclusion of assets necessary for one spouse's business.
It is possible to conclude a marital contract under foreign law in Switzerland for a couple residing there, where one or both spouses hold foreign citizenship. It is advisable to seek legal advice from a family law attorney when drafting such a contract, as laws vary significantly between countries. Professionals can advise whether this arrangement would be advantageous for you or not.
Marital contracts are typically concluded before or at the time of marriage. However, it is also possible to enter into a marital contract several years after marriage. This may be advisable, for instance, if there are changes in one spouse's financial situation or upon the birth of a child.
A marital contract becomes valid only after it has been notarially certified. If the marital contract is agreed upon before marriage, its effects begin at the time of marriage. The marital contract remains valid until either a new marital contract is established, or the couple divorces or one of the spouses passes away.
No couple is obligated to conclude a marital contract. Couples who do not enter into a contract automatically adopt the regime of accrued gains (Errungenschaftsbeteiligung), which governs property disputes in divorce or in the event of death.
It can be beneficial for any couple to conclude a marital contract as a preventive measure against future legal or financial conflicts. A marital contract creates transparency regarding the ownership of assets for both spouses and also influences inheritance matters in the event of a spouse's death. With a contract, you can ensure the economic security and independence of both partners during and especially after marriage, as well as avoid costly legal disputes.