Introduction to Matrimonial Property Law

Regime of Acquired Property, Community of Property or Separation of Property?

Matrimonial property law regulates which spouse owns which assets during the marriage as well as in case of a dissolution of the matrimonial property regime upon death or divorce. Furthermore, it provides for rules how increases in value arising during a marriage are to be divided and how reciprocal debts between the spouses are to be offset.

Swiss Law provides for three matrimonial property regimes: the statutory matrimonial property regime of acquired property as well the – contractual agreed – community of property and separation of property. In a (pro or post) nuptial agreement, the spouses may choose one of the three matrimonial property regimes within the legal framework and may adapt it to their individual needs. A nuptial agreement may be concluded prior to or after the marriage and must be executed as a public deed.

 

1. Regime of Acquired Property

1.1 Matrimonial Property

The regime of acquired property is the statutory matrimonial property regime that applies to the spouses by law (automatically). Each spouse disposes of the individual property and the acquired property that he or she manages himself or herself.

  • Individual property: personal items and assets; assets brought into marriage; assets acquired at no cost such as gifts and inheritance during the marriage; claims for satisfaction and acquisitions that replace individual property.
  • Acquired property: the proceeds from his or her employment (wage/salary); benefits received from staff welfare schemes, social security and social welfare institutions; compensation for inability to work; income derived from his or her own property and property acquired to replace acquired property.

Each individual asset and item must be allocated to one of the properties. All assets of a spouse which is not in his or her individual property is, by operation of law or in case of doubt, deemed to be acquired property.

Each individual asset and item must be allocated to one of the properties. All assets of a spouse which is not in his or her individual property is, by operation of law or in case of doubt, deemed to be acquired property.

 

1.2 Division of Matrimonial Property

If one of the spouses passes away or in case of a divorce, the division of the matrimonial goods takes place. For this purpose, first the two individual properties, then the acquired properties are determined. If debts of one of the properties have been paid by another property, there are so-called claims for compensation (Example: the wife inherits a property which becomes part of her individual property. She pays the inheritance compensation to her brother with funds from her acquired property. Thus, her acquired property has a claim for compensation against her individual property).

In addition, surpluses and deficiencies that have arisen when funds of one spouse have contributed to the acquisition or management of assets of the other one are also taken into account (Example: the husband inherits a real estate. The wife later has a winter garden built by means of her salary [acquired property]. If the real estate has increased in value at the time of the division of the matrimonial goods, the wife's acquired property has a claim [investment plus share of increased added value] against the husband's individual property).

Those adjustments finally lead to the net balance of both acquired properties (so-called surplus). Each spouse or his or her heirs is or are entitled to one-half of the surplus of the other spouse.

 

1.3 Nuptial Agreements

Under nuptial agreement, spouses may declare acquired property to be individual property set aside for professional or business use. Furthermore, they may stipulate in n agreement that income from individual property does not qualify as acquired property.

It is further permissible to agree on a different participation in the surplus in the event of divorce, separation or the death of one spouse (e.g. entire surplus, a quota or no participation).

 

2. Community of Property

Community of property is a contractually agreed property regime. The spouses jointly own the common property, and, in addition, each spouse has his or her own individual property.

If the community of property regime is dissolved by the death of a spouse or the establishment of a different matrimonial property regime, each party or his or her heirs is entitled to one-half of the common property. There are numerous regulations on how the existing common property is to be supplemented or reduced. Each spouse keeps his or her individual property.

 

3. Separation of Property

In the case of the separation of property agreed in the nuptial agreement, the spouses are to be treated as third parties in terms of property law. Each one owns his or her individual property. Upon dissolution of the matrimonial property regime, there is no equitable division because there is no property law participation of the other spouse.

The separation of property also exists either by court order or ex officio if a spouse living under the community of property regime is declared bankrupt.

 

4. Registered Partnership

The property rights of registered partners are regulated according to the model of separation of property (cf. art. 18 et seq. Same-Sex Partnership Act).

 

Recommendation

Our MME team of experts gladly offers you and your spouse or registered partner an initial one-hour information session at a reasonable price in order to familiarize you with the basic principles of matrimonial property law. In addition, we gladly to advise you on the matrimonial property regime that suits your situation best and assist you in drawing up the nuptial agreement that can be notarized directly at our in-house notary's office in Zug. We look forward to hearing from you.

June 2021 | Authors: Alexandra Geiger, Corina Moschen

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