Contents of a marital agreement
In a marital agreement, the spouses can regulate their property regime (cf. Marital agreement options). If there is no marital agreement, the spouses are subject to the ordinary property regime governing participation in acquired property. A marital agreement can also be useful for this property regime. For example, it allows the spouses to declare assets which are actually to be allocated to the property acquired during the marriage as individual property of each spouse. However, this requires that these assets are intended for the pursuit of a profession or the operation of a business. Furthermore, spouses may stipulate in a marital agreement that income from individual property does not qualify as acquired property. (cf. Difference between acquired property/individual property)
The situation is different for the property regimes of community of property and separation of property. For one of these property regimes to be used by the spouses, a marital agreement is required. In the case of community of property, individual assets can also be declared individual property of each spouse by means of a marital agreement. These provisions can be of great importance in the case of the division of marital property, particularly in the event of divorce or after the death of a spouse. In principle, a marital agreement can be changed at any time.
Validity requirements
The first criterion is the spouses’ capacity of judgement. However, this cannot be determined in general and must be present for the specific legal transaction. Due to the importance and the effects of a marital agreement, there are stricter legal requirements. However, the age of majority is not required. Minors, as well as adults who are subject to a deputyship, may also enter into a marital agreement with the consent of their legal representative.
The second criterion is that the marital agreement must be executed as a public deed. The spouses must therefore have the agreement officially certified by a notary. Regulations differ from canton to canton. What is the same across Switzerland is that the agreement must also be signed by the parties and, in the case of minors and adults who are subject to a deputyship, by the legal representative.
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