– August 25, 2022

My partner and I want to get married this year. In which case is a marriage contract advisable?

The definition of the matrimonial property regime is important in this context. The matrimonial property regime regulates which objects and assets are to belong to which partner during and after the marriage, or how income earned during the marriage or the registered partnership is to be distributed in the event of divorce.

 In Switzerland, there are three different matrimonial property regimes: joint ownership, community of property and separation of property. There is a numerus clausus, i.e. type constraint, of the matrimonial property regimes (Art. 182 para. 2 CC). This means that effectively only these three matrimonial property regimes exist. With a marriage contract, one of the three matrimonial property regimes can be freely chosen and changed at any time.

Ordinary matrimonial property regime

Acquired property share

The division of the acquired property is governed by Art. 196 et seq. It is also referred to as the ordinary matrimonial property regime. Ordinary because this matrimonial property regime applies from the time the marriage comes into existence if no marriage contract has been concluded. The acquisition only has to be declared by a marriage contract if there is already a marriage contract that stipulates a different matrimonial property regime. The assets are divided into four so-called property classes: Husband’s own property, husband’s acquired property, wife’s own property and wife’s acquired property.

According to Art. 197 of the Civil Code, all assets acquired by the spouses in return for payment during the marriage are part of the matrimonial property. Pursuant to Art. 198 CC, personal property includes all assets which the spouses already possessed before marriage and which are for their personal use only, assets which accrue to them free of charge, for example by way of gift or inheritance, compensation and replacement purchases for personal property.

Example husband’s acquired property: clothing

Example husband’s inheritance: pension fund contribution during the marriage

Example wife’s personal effects: own vehicle which only she drives

Example wife’s acquired property: salary payments during the marriage

If you are considering a matrimonial property regime other than the community property regime, this should be done before the community property regime applies, if possible. It is possible to draw up a marriage contract subsequently, but this already requires an elaborate property law dispute.


Extraordinary matrimonial property regimes

Extraordinary matrimonial property regimes are those that are not applied by law but must be established in a marriage contract. There is separation of property and community of property.


Separation of property

The separation of property is regulated in Art. 247 ff. Civil Code and is the simplest matrimonial property regime. It consists of only two sets of assets: The wife’s assets and the husband’s assets. In the case of separation of property, each spouse manages his or her assets independently and also disposes of them alone. In the event of a dissolution of the marriage, this can save a lot of money and time, as there is no need for a property settlement.


Community of property

A marriage can only be subject to community of property if this has been agreed in a marriage contract. Community of property is governed by Art. 221 ff. The community of property is governed by Art. 221 ff. of the Civil Code and consists of a total of three property classes: Husband’s own property, joint property and wife’s own property.

The core of the property is the so-called joint property. As the name suggests, it belongs jointly to the spouses during the marriage. If one of the parties wants to sell something from the joint property, the consent of the other is required. In addition, each spouse has his or her own property, which makes the administration, disposal and liability of a community of property very complex.

It is important to note that the personal property of the community of acquired property is not the same as the personal property of the community of property. The personal property in community of property only includes those items for sole use, such as clothing.

If you and your partner wish to marry, a prenuptial agreement may be advisable, for example, if you both already have large assets (e.g. securities/investments, real estate in Switzerland/abroad, etc.) before the marriage or if the development of assets during the marriage is uncertain. The marriage contract can be concluded before the marriage or during the marriage (Art. 182 para. 1 CC). The formal requirements pursuant to Art. 183 CC apply to the establishment of the marriage contract. Accordingly, the marriage contract must be publicly notarised and signed by the parties.

In a family law consultation, our lawyers will be happy to pick up your ideas and wishes and advise you accordingly – this way you can be sure that the desired terms and conditions are legally binding and as fair as possible for both partners. We are happy to answer any questions you may have.