What is a matrimonial property regime?
Despite the considerable space dedicated to it in the Swiss Civil Code (Zivilgesetzbuch, ZGB), a “matrimonial property regime” is never defined under Swiss matrimonial property law. So we’ll briefly define the term here: a matrimonial property regime regulates which assets belong to which spouse during the marriage and how they’ll be divided if the couple divorces or one spouse dies. The matrimonial property regime chosen also determines how a growth of those assets should be divided and how the spouses’ mutual debts and investments should be cleared. In principle, Switzerland recognises three different matrimonial property regimes: joint ownership of acquired property, joint property, and separation of property.
Joint ownership of acquired property
In general, a married couple is subject to the provisions governing joint ownership of acquired property, unless they agree otherwise through a marriage contract or an “extraordinary” matrimonial property regime takes effect. Therefore, the law refers to joint ownership of acquired property as the “ordinary” matrimonial property regime. In other words, married couples who have not entered into a marriage contract are subject to joint ownership of acquired property. Joint ownership of acquired property includes the “acquired property” and each spouse’s “private property”. These crucial terms can be imagined as a type of container into which the marriage’s various assets can be placed.
All the assets that a spouse acquires during the matrimonial property regime belong to the acquired property. Earned income might be the most relevant example of acquired property. On the other hand, private property includes assets that already belong to one spouse at the beginning of the matrimonial property regime or are allotted to them later through inheritance, a gift, or the like. nd objects for personal use by only one spouse, such as clothing or sports equipment, are also deemed personal property. If the matrimonial property regime is dissolved (through the death of a spouse, for example), the acquired property and each spouse’s private property will be separated out according to the spouse’s portfolio at the time of dissolution.
Thus, a “state of affairs analysis” is performed in which assets are added or compensation claims between acquired property and private property can be asserted. The goal of this sorting out is to determine the surplus of each spouse. This is made up of the total value of the acquired property, including the added assets and compensation claims, after deducting the debts adhering to it. Now each spouse or their heirs is entitled to half the “surplus” of the other spouse, claims being set off against each other. Naturally, the spouses can deviate from this basic regulation, shown here in a simplified form, by entering into a marriage contract.
Joint property
The joint property regime combines the assets and income of both spouses into a single community property. This excludes items that are considered private property by law. Keep in mind, however, that private property within a “joint property” regime is configured differently than that belonging to the “joint ownership of acquired property” regime. Thus, as we have already seen with “joint ownership of acquired property”, the legislature is working with the two containers making up the matrimonial regime. Unlike joint ownership of acquired property, community property belongs to both spouses.
However, the spouses can dispose of the community property only as part of the “ordinary administration”, with everyday legal transactions of minimal significance. If one spouse acts in the area of “extraordinary administration”, they must do so together with the other spouse or with their consent. Moreover, each spouse is liable for most debts with their private property and the community property. If the joint property regime is dissolved by the death of a spouse, for example, each spouse (or their heirs) is entitled to half the community property. The spouses are not bound by these provisions; by entering into a marriage contract, they can make adjustments where the law allows.
Separation of property
Unlike the other two matrimonial property regimes, the law’s discussion of “separation of property” is quite brief. In general, the law provides that each spouse shall administer and enjoy the benefits of his or her own property and has power of disposal over it. Thus, each spouse controls only one container in which their assets can be placed. Moreover, each spouse is liable for debts with their entire assets. At the request of one of the spouses, separation of property can be ordered for important reasons, such as over-indebtedness. If bankruptcy proceedings are initiated against the assets of a spouse participating in the joint property regime, separation of property will occur by law. These cases constitute an “extraordinary” matrimonial property regime.
Which matrimonial property regime should I choose?
All married couples are automatically subject to the “ordinary” matrimonial property regime of joint ownership of acquired property. If they enter into a marriage contract, they also have the opportunity to choose the matrimonial regime of joint property or separation of property and in so doing to consider specific needs. There is no generalised answer about which matrimonial property regime is correct for a married couple – it depends on their specific personal and financial circumstances. But it’s important to know that matrimonial property law allows the couple a great deal of leeway. You should also keep in mind that you can alter an agreed matrimonial property regime at any time by entering into a different agreement.
Summary of the most important points
- Without a marriage contract, a married couple is automatically subject to the joint ownership of acquired property regime. It is made up of private property and acquired property.
- The joint property regime can be agreed through the formation of a marriage contract. It combines assets and income into community property.
- Separation of property can also be selected by means of a marriage contract. The spouses’ assets and debts remain completely separate from each other.