There are three different marital property regimes under Swiss law: the acquired property regime, the separation of property regime and the community of property regime.
Although most spouses don’t adopt a marriage contract, it is important to be aware of the different matrimonial regimes available and the adjustments permitted by Swiss law.
Default regime
In the absence of a marriage contract, the acquired property regime applies automatically (art. 181 CC). This regime consists in four units of property: the property acquired during the marriage by each spouse, referred to as acquired property, and the property acquired by each spouse before the marriage, referred to as individual property.
As a general rule, acquired property includes assets acquired by the spouses for valuable consideration, while individual property comprises the assets each spouse possessed before the marriage or acquired free of charge during the marriage.
More specifically, acquired property includes proceeds from the spouses’ employment, benefits received from staff welfare schemes, social security and social welfare institutions, compensation for inability to work, income derived from the spouses’ respective individual property and property purchased through acquired property (art. 197 al. 2 CC).
Each spouse’s individual property, on the other hand, includes personal effects used exclusively by that spouse, assets belonging to one spouse at the beginning of the marital property regime or acquired later at no cost by inheritance or otherwise, claims for satisfaction and acquisitions that replace individual property (art. 198 al. 2 CC).
Under this regime, each spouse administers and enjoys the benefits of their individual property and has power of disposal over that property, within the limits of the law. Should an asset be jointly owned by both spouses, each spouse’s consent is required to dispose of said asset (art. 201 CC).
Modifications to the statutory regime
It is possible to modify the acquired property regime, although only within the limits of the law (art. 182 al. 2 CC). Indeed, the spouses can agree, by marriage contract, for income from their individual property to remain their individual property.
Another possibility, often used by business owners, is to provide for acquired property affected to professional use within the company to be qualified as individual property. This avoids having to split this property in case of divorce.
Business owners can also protect their property through conclusion of a marriage contract adopting a separation of property regime, or a restricted community of property regime.
Marriage contract
The spouses can conclude a marriage contract, which must be ratified by a public notary, whereby they can adopt either the community of property regime or the separation of property regime.
Community of property regime
Under this regime, the spouses’ assets are divided into common and individual property. This regime can be modified further than the acquired property regime. Indeed, the spouses can choose to adopt a universal community, a community restricted to acquired property, or another form of community of their choice.
Under the universal community regime, all assets fall into common property, with the exception of each spouse’s personal effects, claims for satisfaction, acquisitions that replace these assets as well as gifts from third parties, which constitute individual property by law.
As its name indicates, the community restricted to acquired property regime restricts common property to assets acquired during the marriage. In this case, as in the acquired property regime, income derived from each spouse’s individual property becomes common property.
The spouses can choose to further restrict the community of property regime by excluding specific assets or types of assets. Unless otherwise agreed, income from such assets does not become common property (art. 224 CC).
In the community of property regime, both spouses administer common property in the best interests of the marital union. Should the administration of assets exceed the limits of everyday management, each spouse’s consent is required to dispose of common property (art. 227 al. 1 CC).
Separation of property regime
Under this regime, each spouse administers and enjoys the benefits of their own property and has full power of disposal over said property, within the limits of the law (art. 247 CC).
Debts
Under Swiss law, the authority to represent the marital union is directly linked to liability for debts within the marriage, as this authority determines under the circumstances under which one spouse’s actions bind the other, particularly in relation to creditors. The interaction between this authority and liability for debts varies depending on the matrimonial property regime.
Both spouses represent the marital union with regard to the family’s day-to-day needs. As for the family’s other needs, each spouse may represent the marital union as long as they have the other spouse’s consent or, should the other spouse be unable to consent due to illness, absence or a similar reason, where the interests of the marital union don’t allow for any delay (art. 166 CC).
Whether it be under the acquired property regime or the separation of property regime, the same rule applies: each spouse is liable for their own debts, with all their property. A spouse’s debts also include those contracted by that spouse as a representative of the marital union. In this case, and as long as the representation does not exceed the spouses’ authority of representation, the law establishes joint liability of the spouses towards creditors.
As far as individual debts are concerned, the difference between both regimes lies in the assets at the creditor’s disposal. Indeed, the debtor is liable with their individual property in the separation of property regime, whereas acquired property is also at the creditor’s disposal in the acquired property regime.
The separation of property regime can therefore allow one spouse to protect the other, especially in the event of important debts.
As for the community of property regime, as a general rule each spouse is liable for their debts with their individual property and common property for debts incurred in representing the marital union, in the pursuit of a profession or business, provided common property has been used for this or the income therefrom becomes common property, and for debts for which the other spouse is liable. For all other debts, each spouse is liable only with their own personal property and half the value of the jointly owned property.
If you have any questions regarding the matrimonial regime best suited to you, or with regard to your liability for any debts, please feel free to book an appointment with us to discuss your situation!
23/12/24 – Amélia Rauss
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