Marital property law: What needs to be considered?

Marital property law governs which assets belong to which spouse during the marriage and upon dissolution of the matrimonial property regime through death or divorce. It also determines how the increase in assets that arises during the marriage is to be divided and how mutual debts toward each other are to be offset. This article provides an overview of marital property law in Switzerland.

The law provides for three matrimonial property regimes: The statutory matrimonial property regime of joint ownership in participation in acquired property, the contractual matrimonial property regime of community of property and separation of property. In a marriage contract, the spouses can choose one of the three matrimonial property regimes and adapt it to their individual needs within the framework of the legal requirements. The marriage contract can be concluded before or after marriage and must be publicly notarized by a notary.

1. Participation in acquired property regime

1.1 Property

The participation in aquired property regime is the so-called ordinary matrimonial property regime, which automatically applies to the spouses by general  law. In this case, each spouse is at the disposal of his or her own property and the acquired property, which he or she manages personally:

The personal property includes: Personal effects; assets brought into the marriage; gratuitous gifts such as gifts and inheritances; claims for satisfaction as well as replacement purchases for personal property.

Acquired property includes: income from work; employee benefit schemes, social security and social welfare institutions; compensation for inability to work; income derived from personal property as well as replacements for aquired property.

Each individual asset must be assigned to an estate. All assets of a spouse that are not part of his or her personal property or raise doubt fall into the acquired property by definition of law.

1.2 Marital property regime liquidation

If one of the spouses dies or divorces, the separation of the marital property takes place: The marital property division. For this purpose, the two personal marital estates are determined, then the acquisitions. If debts of one estate have been paid by the other estate, there are so-called compensation claims (example: the wife inherits a property that is part of her own estate. She pays the equalization payment to her brother with funds from her aquired property. Thus, her acquire property has a claim against her personal property).

Surpluses and deficits that have arisen when funds of one spouse have contributed to the acquisition or management of property of the other have tob e taken into account. (Example: the husband inherits a property. The wife later has a wintergarden added using her personal income from work. If the property has a higher value at the time of the marital property regime, the wife's acquisition has a claim [investment plus share of added value] against the husband's personal property).

These adjustments ultimately result in the net balance of both acquisitions (the surplus). Each spouse or their heirs are entitled to half of the other's surplus.

1.3 Marital Agreement

The spouses may, by means of a prenuptial agreement, declare assets of the matrimonial property intended for the exercise of a profession or the operation of a business to be their personal property. In addition, they may agree that income derived from  personal property shall not be included in the acquired property.

Furthermore, it is permissible in the marriage contract to agree on a different participation in the surplus in the event of divorce, separation or the death of one of the spouses (e.g. the entire surplus, a quota or no participation).

2. Community of property

Community of property is a contractualproperty regime. The spouses jointly own the complete property and, in addition, each spouse has his or her personal property.

If the community of property is dissolved by the death of one spouse or by agreement on another property regime, each spouse or their heirs are entitled to half of the total property. There are numerous regulations on how the existing joint property is to be supplemented or reduced. Each spouse retains his or her own property.

3. Separation of property

In the case of the separation of marital propertyagreed upon by contract, the spouses are treated like third parties in terms of property law: Each owns his or her own property. Thus, in the event of dissolution of the matrimonial property regime, there is no equalization because the other spouse does not participate in the matrimonial property regime.

In addition, the separation of property exists either by court order or by law if bankruptcy proceedings are instituted against one of the spouses living in community of property.

4. Registered partnership

The property rights of registered partners are regulated along the lines of the marital separation of property.

5. Further advice

We are happy to offer you and your spouse or registered partner an initial, low-cost informational meeting lasting one hour to familiarize you with the basic principles of marital property law. Afterwards, we will happily advise you on the matrimonial property regime that best suits your life situation and assist you in drafting the marriage contract, which can be notarized directly at our notary office in Rapperswil-Jona. We look forward to hearing from you.