Quick Summary
- Since the revision of the law “Marriage for All”, same-sex couples can marry since July 2022. Marriage was originally conceived as a civil union between a man and a woman. Until recently, same-sex couples only had the option of a registered partnership. Now there finally is equality between mixed and same-sex couples.
- The registered partnership will be less relevant, especially since no new registered partnerships can be established since the revision came into force. A registered partnership can be converted into a marriage by the civil registry office at the request of those wishing to marry.
- In general, the revision implemented only minor changes. For existing marriages and marriage between a man and a woman in general, hardly anything changed. Thus, the “marriage for all” law revision was limited to the equality issue. Further innovations in marriage law are being planned, but are not related to “marriage for all” in terms of content.
What are new family law elements?
In the referendum on 26 September 2021, “Marriage for everyone” was approved. This means that a large number of Swiss citizens have endorsed full equality for same-sex couples and thus the most significant change to marital law in recent years. Since 1 July 2022, the key provision on marriage has been the following:
Marriage can be entered into by two people who are at least 18 years of age and able to make sound judgements.
ART. 94 CIVIL CODE CAPACITY TO MARRY
Whilst the old law made reference to the “bridal couple”, i.e. bride and groom, the new provision is expressly gender-neutral (“two people“). The other provisions remain unchanged, namely, majority and ability to make sound judgements for both marriage applicants at the time of the marriage. In addition, various provisions of marriage law were adapted such that they are also worded in a gender-neutral manner.
The main consequence of this change is that same-sex couples can now get engaged and married as well. Previously, same-sex couples only had the option of choosing the civil status of a civil partnership. A same-sex marriage is now possible and considered equal in every respect to a marriage between a man and a woman. This also leads to changes in family and property law. For example, same-sex couples can now adopt children together or choose the property rights of marital law. However, they are also subject to the provisions of “general” marriage law and family law in other respects.
What will happen to the civil partnership now?
A civil partnership is similar to marriage but is not fully equal to marriage. It is an expression of the previously held view that marriage should be reserved for a man and woman for the purpose of starting a family. At the same time, it reflected the recognition of same-sex relationships as a special form of two people who are close to each other living together. Registered civil partners are therefore legally more closely connected to each other than people who live together without the corresponding civil status (known as cohabitation partners).
As well as symbolic differences, there are also legal differences between a civil partnership and marriage. These differences can be seen, for example, when it comes to naturalisation, reproductive medicine and adoption of children. Until now, there were restrictions for same-sex couples in these areas; these restrictions will now cease to exist with same-sex marriage (see below).
Will anything change when it comes to marriage between a man and a woman? Due to the opening up of marriage to all couples, no new civil partnerships can be established. Couples currently living in a civil partnership can either continue to do so or have this converted into a marriage by providing a joint declaration at the registry office. The provisions of marital law come into effect at the time of the conversion. There is no retroactive effect. This means that the provisions of marital law are only applicable from the point in time at which the civil partnership is converted into a marriage. Provisions relating to the duration of the marriage (for example, with regard to post-marital maintenance, pension compensation or naturalisation) are, however, linked to the point in time at which the civil partnership was entered into. After the conversion of the civil partnership, the previous duration of the civil partnership will be counted for the purpose of calculating the duration of a marriage.
Will anything change when it comes to marriage between a man and a woman?
In principle, this amendment has not changed anything for marriages between a man and a woman. This applies to both existing marriages and to marriages entered into after the new provisions came into force. In the words of the Federal Council: “[Mit der Revision] The amendment is intended to eliminate the current unequal treatment. All couples should have the same rights and obligations when they get married. The bill addresses a need expressed by many people. Nothing will change for marriages between a man and a woman.“.
What does the revision mean for family planning and provision?
Legal changes will primarily be experienced by same-sex couples. Provisions which are not linked to the gender of the marital couple were not changed. The most important changes relate to property law and the provisions on adoption. In the fields of reproductive medicine, inheritance law and adult guardianship law, equality is possible without any notable changes to the statutory provisions.
Matrimonial property regime
According to Swiss registered partnership law, civil partners are, in principle, subject to a provision which corresponds to the separation of property regime under marriage law. The couple may deviate from this by stipulating in a public property deed that provisions on the joint ownership of acquired property should apply in the event that the civil partnership is terminated. There is no system of community of property which is comparable to the matrimonial property regime for civil partners.
This has changed: same-sex married couples are now subject to the same rules governing property rights as mixed-sex couples. The ordinary system of joint ownership of acquired property applies from the point in time at which marriage is entered into (or a civil partnership is converted into marriage). It is not backdated to the time at which the partnership was entered into. This is important for the allocation of assets in the event of a subsequent division of matrimonial property. By means of a marital agreement, marital couples can modify their property ownership system or select another (joint property or separate property). A marital agreement can also be combined with an inheritance contract.
Adoption
For people unable to have children themselves, adoption is one of the key ways of starting a family. Even if there is no biological link between a parent and a child, a parent/child relationship can be established through adoption. People living in a civil partnership were already allowed to adopt their partner’s child under the old law. After the opening up of marriage, same-sex couples now also have access to joint adoption. The option of adopting a child together was previously reserved for (mixed-sex) married couples.
Reproductive medicine
However, “Marriage for everyone” does not open up a route to egg donation or surrogacy. The revision did not provide for any fundamental changes to access to reproductive medicine. Anonymous sperm donation, egg donation and surrogacy are still prohibited. As such, all married couples (continue to) have the same rights in the area of reproductive medicine.
Inheritance law, adult guardianship law and tax law
In the areas of inheritance law and adult guardianship law, married couples and civil partners were largely equal before “Marriage for everyone”, meaning that no legal revision was necessary in these areas. Civil partners were already deemed statutory heirs with legal share protection under the old law and had a legal right of representation in the event of incapacity. However, one thing has changed in the field of inheritance law: the majority benefit principle for the surviving spouse is now available to all married couples in a gender-neutral way. Previously, the decisive Art. 473 Civil Code was restricted to mixed-sex couples in its wording and, as a consequence, was not available to civil partners. Ultimately, civil partners were already equal to married couples, including with regard to cantonal gift and inheritance taxes, before “Marriage for everyone” entered into force.