The Influence of the Matrimonial Property Regime on a Divorce

The property regime is part of Swiss matrimonial property law and encompasses all the regulations that determine the ownership of various assets and items within a marriage. The respective property regime also regulates whether any debts are shared or not.

How Does Matrimonial Property Law Apply in the Event of a Divorce?

In the event of the dissolution of a marriage or in the case of death, the property regime significantly impacts how assets are subsequently divided and who is entitled to what earnings from the marriage. The process of determining and enforcing claims is referred to as a matrimonial property settlement, and it varies depending on the property regime. An attorney can advise you on the specifics.

In Switzerland, matrimonial property law distinguishes between three different property regimes: participation in acquisitions, separation of property, and community of property. Additionally, there is a so-called modified participation in acquisitions, which acts as a sort of fourth property regime. You can choose one of these property regimes before or during your marriage and record it in a prenuptial agreement. This must always be notarized to be legally effective. If you do not create a prenuptial agreement, the law prescribes participation in acquisitions as the default property regime according to Art. 196 et seq. CC (Swiss Civil Code).

In participation in acquisitions, there is a distinction between the personal property of both spouses and the so-called acquisitions. This regime initially assumes no joint property but considers the assets of both spouses independently. According to Art. 198 CC, personal property includes all items and assets that you and your partner each own and manage independently of the marriage. Personal property includes personal belongings or inheritances brought into the marriage.

According to Art. 197 CC, acquisitions encompass the earnings that you have individually or jointly achieved during the marriage. This includes, among other things, your salary, social security benefits, or profits from investments and any resulting interest. In the event of a matrimonial property settlement, it becomes relevant whether and which acquisitions you and your spouse have jointly achieved.

Special Case: Modified Participation in Acquisitions

You have the option to make certain changes to the participation in acquisitions as the legal property regime within a prenuptial agreement (Article 199 CC). For example, you could explicitly declare your earnings as personal property or exclude appreciation sharing. Such contractual changes can impact inheritance matters in the event of death or serve to economically secure your business. Therefore, it is always advisable to seek legal advice before drafting a prenuptial agreement for a modified participation in acquisitions.

What Happens in the Event of a Divorce with Participation in Acquisitions?

If you have not made any modifications to the participation in acquisitions, the matrimonial property settlement in the event of a divorce usually occurs in six steps:

• Separation of Assets: First, the assets of both spouses are separated and allocated to either the man or the woman (Art. 205 CC).
• Exclusion: The respective personal assets are excluded as asset masses, so that the acquisitions can be considered separately. Any debts are also allocated to one of the spouses if possible (Art. 209 CC).
• Valuation: The acquisitions are then valued in their current state and fixed in terms of assets. Possible value changes can be taken into account until the end of the settlement (Art. 211 CC).
• Addition: Any gratuitous transfers to third parties within the last five years are added to the fixed value. Any avoidance transactions intended to reduce the participation value can also be considered here (Art. 208 CC).
• Proposal: If the total value of all acquisitions, including debts and additions, is positive (also called the active balance), this is now considered the proposal. Unless otherwise agreed, each partner is entitled to half of the proposal amount (Art. 210 and 215 CC).

Separation of Property

As the name suggests, in this regime, governed by Art. 247 et seq. CC, all assets are viewed separately. There are no joint acquisitions, only the personal property of both partners. Therefore, the matrimonial property settlement in the event of a divorce is straightforward: you and your partner each take back your respective personal property. Any debts are subsequently settled separately. Normally, debts in this regime are not transferable—each spouse is liable for their own debts.

Tip: Keep an Inventory

To avoid unfair solutions or disagreements in the event of a divorce in Switzerland, it is advisable to attach a notarized inventory list to the prenuptial agreement. According to Article 195a CC, spouses can request the creation of a joint inventory list from each other—since in case of doubt, you must be able to prove that you actually own an item or an asset. An inventory truthfully records the status of both of your assets and ensures that these are considered separately in a settlement.

Community of Property

In this third property regime, there is the personal property of both spouses as well as the joint property (Art. 221 et seq. CC). Personal property in this case includes only those assets that you use and manage solely. This includes, for example, everyday items like clothing, and sometimes personal inheritances or gifts can also be considered personal property. All other assets are considered joint property unless otherwise stipulated in the contract and belong to both of you undivided.

What Happens in the Event of a Divorce with Community of Property?

If a community of property is dissolved, the matrimonial property settlement usually occurs in three steps:

• Assignment: The value of your joint property, including debts, is determined, and the respective assets are assigned to you or your partner.
• Division of Asset Claims: Both spouses then formulate their claims to the various assets within the joint property.
• Enforcement of Claims: Finally, the claims are enforced following an agreement, and both partners receive the assets to which they are entitled.

Many people assume that they can only protect themselves from liability for their spouse's debts within a marriage through a contractually stipulated separation of property. In fact, debts are not transferable even within a marriage. In Switzerland, regardless of the marital property regime, each person is liable for their own debts (Art. 203 CC). This applies whether the debts were incurred before or during the marriage. If your joint property in a community of property is over-indebted, the debts are equally divided between both spouses.

This protection from debt liability applies even if, for example, there is an enforcement order against your spouse. In such a case, creditors can only seize assets from your spouse's personal property or acquisitions – your own assets remain unaffected.

During a family law consultation, both spouses can initially express their wishes and expectations and choose an appropriate marital property regime based on these. This ensures that all conditions and terms are legally binding and as fair as possible for both partners. Once you have contractually established and notarized a marital property regime, it becomes legally effective. This means that you can only make changes to it with mutual consent. Therefore, especially in complex financial situations, it can be worthwhile to consult a family law attorney to draft a contract for your marital property regime.