However, there are exceptions to this in accordance with Art. 124b ZGB. According to this, the spouses can deviate from the 50/50 division in a divorce agreement or waive the pension equalisation. This makes particular sense for marriages without a traditional division of responsibilities if the marriage is short and childless, both spouses are in full-time employment and retirement is not imminent.
The court must approve the agreement on the equalisation of occupational pension entitlements and, in the event of a deviation from the one-half division, must examine whether adequate retirement and disability benefits are still guaranteed and whether this agreement was made voluntarily and in full knowledge of the circumstances (Art. 280 ZPO).
For important reasons, the court may refrain from dividing the property equally, even without an agreement or application by the parties, if the division of the property equally would be inappropriate due to the property settlement or the economic circumstances after the divorce or due to the need for provision in the event of significant age differences (Art. 124b para. 2 clauses 1 and 2 ZGB).
In addition, the court can also award more than half of the termination benefit if the entitled spouse looks after joint children and the obligated spouse is not dependent on it (Art. 124b para. 3 ZGB), for example to compensate for the pension gap that has arisen from the initiation of divorce proceedings until the divorce becomes final.
Art. 125 of the Swiss Civil Code also makes it possible to claim pension maintenance from the other spouse for the period after the divorce if there are future pension gaps. This is the case, for example, if the entitled party continues to work only part-time or only pays small amounts into their own pension scheme (e.g. due to self-employment). If pension maintenance cannot be paid due to a lack of disposable assets, more than half of the pension maintenance must be divided (Art. 124b para. 3 ZGB).
Excursus: The first pillar (old-age and survivors’ insurance) is divided by law when the divorce becomes final (so-called AHV splitting). Savings in the third pillar must be divided in accordance with the rules governing the dissolution of the matrimonial property regime.
It was assumed above that the spouses are not yet receiving any disability or retirement benefits from the occupational pension scheme. In these cases, there are other legal bases, which will be discussed in another blog post.
If you have any questions on the subject of family law, our lawyers will be happy to assist you.