Marriage Contracts: What Swiss Law Allows
Author: Etienne Jeandin
Publication Date: 2013
Summary of the article published in the daily newspaper “Le Temps” on 15 April 2013
The main purpose of a marriage contract is to select a matrimonial property regime different from the one proposed by law, which is the statutory regime of participation in acquired property. In most cases, the marriage contract serves to adopt the regime of separation of property. However, other covenants may be adopted in a marriage contract, such as the following:
Inventory of the spouses’ assets
The contract serves as proof for determining the ownership of certain assets of the spouses. Such proof may be useful not only in resolving a potential dispute between spouses, particularly at the time of divorce, but also vis-à-vis third parties. All property for which proof cannot be provided is deemed to belong to each spouse equally.
Loans between spouses (and their remuneration)
For the same reasons, any debts existing between the spouses may be included and detailed in the marriage contract. In this case, it may be beneficial to ask the notary for advice on how to take into account the added value of the loan and/or its remuneration.
Division of tasks between the couple
The law provides that the spouses may decide on such division, particularly as regards cash payments and childcare or support for the other’s career. The spouses may be adapt or amend this covenant at any time.
Division of 2nd pillar pension assets
It is important to note that the increase in the pension assets of both spouses shall be divided equally between the spouses in the event of divorce. This rule is independent of the matrimonial regime chosen by the spouses in their marriage contract. The law prohibits any anticipatory waiver in this area.
Allocation of the family home and its furniture
The law stipulates that one of the spouses may not dispose of (sell, mortgage, lease) the family home without the consent of the other. However, the spouses may waive this legal protection in advance by means of a marriage contract.
Dispositions of property upon death
The spouses may supplement their marriage contract by including inheritance provisions in it. Thus, the conclusion of a marriage contract may be an opportunity for the spouses to give in-depth thought to various issues concerning the fate of their assets upon their death.