Prenuptial Agreement with Separation of Property: Content, Legal Aspects, and Special Provisions
Under Swiss marital law, spouses can agree to a separation of property regime through a marriage contract. In this arrangement, the assets of both partners remain strictly separate during and after the marriage. While a marriage contract with a separation of property simplifies the division of property in case of a divorce, this regime is not necessarily suitable for all couples. This article provides all the essential information about the contractual separation of property.
What is Separation of Property?
In Switzerland, spouses can choose between three legally regulated marital property regimes that govern the distribution of assets during and after a marriage. The separation of property is a type of "non-property regime," as there is no joint ownership in this case. Both partners manage their assets independently at all times and do not share each other's earnings (Art. 247 et seq. CC).
Why Do I Need a Marriage Contract for Separation of Property?
Swiss couples who do not create a marriage contract automatically adopt the participation in acquired property regime (Art. 181 CC). In this regime, each partner manages their separate property, but in the event of a divorce, they share equally in the acquired property—those assets earned or acquired during the marriage. This aims to ensure economic independence during and after the marriage and a fair distribution of marital assets to both partners.
However, to provide couples with maximum freedom in financial matters, Swiss marital law allows them to choose separation of property or community of property through a marriage contract. This enables you to influence the course of possible property settlements within legal limits, protect your private assets or business, and individually determine the distribution of your inheritance (Art. 182, Para. 2 CC).
How Do I Establish a Marriage Contract with Separation of Property?
A marriage contract becomes effective only when notarized and signed by both partners, as per Article 184 CC. For this, you should contact a notary in your canton.
When drafting the contract, you can either use a template to write it yourself or seek advice from a notary or family law attorney. You have considerable freedom in formulating the provisions, provided they comply with legal requirements. It is crucial that certain formal requirements are met and that the clauses are legally compliant. If not, the entire contract will be void—hence, a professional review of your contract before notarization is strongly recommended.
How Should a Marriage Contract with Separation of Property Be Structured?
While the content of a marriage contract primarily depends on your personal wishes, there are some sections that must be included:
- Contract Parties: Clearly name the parties with their addresses and personal details.
- Statement of Intent: Describe the purpose of the contract and its contents.
- Property Regime: Specify the property regime (separation of property) and when it takes effect.
- Asset Allocation: Clearly assign (existing) assets to each partner. A notarized inventory list is highly recommended.
- Signatures and Date: Include the date, signatures of both spouses, and the notary
What Are My Options Within a Marriage Contract with Separation of Property?
When drafting the content, it is crucial to always make clear statements and unambiguously differentiate the allocation of assets. In the event of a property law dispute, it must be clear to third parties which assets are assigned to which partner. If this is not the case, you must be able to prove without a doubt that an asset you claim indeed belongs to you. Such conflicts can unnecessarily complicate a dispute.
While the basic conditions of the separation of property are clearly defined (there is only the separate property of Partner A and Partner B), you can formulate special conditions and clauses in your prenuptial agreement. Below are two examples, but you can also seek legal advice for other clauses based on your wishes.
Special Regulation 1: Inheritance Consequences of Separation of Property
In a prenuptial agreement, you have the option to prioritize your offspring over your partner in your estate. If the partner would receive 50% of the estate in the event of death, you can express different wishes in a prenuptial agreement.
To compensate for such a disadvantage, you can opt for a gift in the event of the dissolution of the marriage. This would mean that your partner receives a fixed compensation value, a share in the ownership of a property, or participation in real estate instead of 50% of the estate (Art. 462 et seq. CC).
Tip: You don't have to agree on such a gift only for the event of death. Such a regulation is also conceivable for the dissolution of the marriage through divorce in Switzerland.
Special Regulation 2: Alternative Property Regime upon Certain Events
You also have the option to define an alternative property regime that you automatically adopt when a specific event occurs. A typical example is that a childless couple wishing to have children agrees to adopt the participation in acquisitions or community of property upon the birth of a child. You can also set special regulations for this alternative property regime to protect your respective assets according to your wishes in the changed life situation.
How Does a Marriage Contract with Separation of Property Affect Divorce?
A prenuptial agreement with separation of property generally ensures that a property law dispute in the event of a divorce is as uncomplicated as possible – almost redundant. Such a prenuptial agreement knows only two types of property: the separate property of Partner A and the separate property of Partner B. Therefore, in the event of a divorce, there are only two steps in the dispute: First, each partner takes back their respective separate property. Then, the spouses settle any mutual or joint debts. According to Article 249 CC, one partner cannot be held liable for the other's debts to third parties.
Burden of Proof and Co-ownership
If there are assets that cannot be clearly assigned to either partner at the time of the dispute, the burden of proof applies according to Article 248 CC. If neither partner can prove ownership of the asset, it is considered common property and is lawfully divided between both spouses.
If your partner can demonstrate a greater interest in a common asset – for example, the shared apartment – it can be allocated to them undivided according to Article 251 CC. However, you are entitled to compensation in this case.
How Can a Family Law Lawyer Help You with Questions about Joint Custody?
In separations and divorces, children's concerns are of central importance, and decisions should not be rushed. The future and personal development of the children are at stake. For parents facing this often emotionally difficult situation, legal decision-making can be complicated. Given the far-reaching consequences of custody decisions, it is advisable to consult a family law attorney who can support you throughout the process. The attorney can advise you on the best custody arrangement for your family.
FAQ: Marriage Contract with Separation of Property
Separation of property is one of the three matrimonial property regimes that Swiss married couples can choose for the division and management of their finances. According to Article 247 of the Swiss Civil Code (CC), there is no joint property under the separation of property regime; both partners manage their assets separately during and after the marriage. For this reason, the separation of property is often referred to as a "non-property regime."
The separation of property is not suitable for every couple. It is particularly beneficial if one partner wants to protect their private assets, business, or real estate from any marital conflicts and claims. Additionally, if one partner is heavily in debt or has a lavish lifestyle, the other partner may opt for separation of property to ensure their financial independence during and after the marriage.
If both partners wish for the separation of property, the only way to achieve this is by agreeing on a prenuptial agreement. In special cases, however, a court can also order the separation of property, for instance, to protect the marital community or at the request of one of the partners, such as in the event of over-indebtedness or bankruptcy of the other partner.
The costs for a prenuptial agreement with separation of property consist of two factors: the costs for drafting the agreement with a notary or lawyer and the costs for the notarization of the agreement. Notary fees are uniformly regulated within each canton but vary significantly nationwide. Additionally, the costs increase depending on the scope and complexity of the agreement. Generally, you can expect that the costs for a prenuptial agreement will be at least one percent of your combined net assets.
In principle, you can draft your prenuptial agreement with separation of property yourself, for example, using a template from the internet. However, you should never use such a template without review to ensure the absolute correctness of the form and content. Therefore, we always recommend legal advice in family law to set up a valid and fair agreement.
If both spouses earn well and have sufficient assets, separation of property can effectively secure the wealth of both partners during and after the marriage. Moreover, with a contractually regulated separation of property, you almost entirely avoid property disputes in the event of a divorce: Both partners take back their assets, and only mutual or joint debts need to be settled between them.
A contractually agreed separation of property can potentially lead to the objective disadvantage of one partner in the event of a divorce. This is the case, for example, if the wife gave up her job because of the marriage. Additionally, in the event of death, the surviving partner may be disadvantaged in inheritance matters if the deceased partner favored their offspring by contract.
A prenuptial agreement is valid indefinitely and only ends if the marriage is dissolved. However, you can change your prenuptial agreement at any time in agreement with your partner.