In Switzerland, a great many couples choose to live together without marrying. Yet, unlike marriage or a registered partnership, unmarried cohabitation has no comprehensive legal status in Swiss legislation.
Cohabitation is treated as a purely de facto community which, by its mere existence, confers no automatic legal right between the partners.
The absence of automatic protection between partners
Civil law lays down neither a duty of legal assistance nor a statutory maintenance obligation between cohabiting partners during their life together or after a separation.
This absence of an automatic protective framework has direct consequences for the essential aspects of life as a couple:
- Maintenance and liquidation:No reciprocal duty of support exists by law; the rules of the matrimonial property regime do not apply by analogy, and in the event of a break-up each partner in principle leaves with his or her own assets and bears his or her own debts, subject to any claims settled under the rules of simple partnership if the partners have pooled resources in order to acquire assets.
- Succession and pension provision:The surviving cohabiting partner has neither the status of a statutory heir nor a statutory entitlement on the death of his or her partner; as regards social insurance (OASI), no statutory widowhood pension is granted, financial protection being conceivable only under the occupational pension scheme (2nd pillar) if the regulations of the pension institution expressly so provide.
The means of giving the couple legal security
Since the law grants no automatic right, the partners must anticipate and voluntarily organise their protection by means of tailor-made legal instruments:
- Cohabitation agreement:Drawing up a private-law contract specifying the sharing of current expenses, responsibility for the rent, the inventory of movable property and any compensation of a partner who has reduced his or her gainful activity.
- Will and contract of succession:Making dispositions mortis causa in order to leave a share of one’s assets to the surviving cohabiting partner, with mandatory respect for the children’s statutory entitlements, while taking account of cantonal inheritance tax.
None of these effects is equivalent to those of adivorce. The survivor has nostatutory entitlementonly a disposition made in a valid form of willcan benefit him or her.
Legal sources
Federal legislation:
- Art. 457 CC(cited byBGE 123 I 241) (status of statutory heir reserved to ties of kinship and to the spouse)
- Art. 530 CO(cited by Federal Supreme Court judgment 4A_441/2007 ;BGE 108 II 204) (simple partnership applicable to the property relations of cohabiting partners where resources have been pooled)
Federal case law:
- BGE 108 II 204(refusal to apply the rules of the matrimonial property regime by analogy, and liquidation under contract law or the law of simple partnership)
- BGE 129 I 1(absence of a statutory maintenance and assistance obligation between partners in unmarried cohabitation)
- BGE 135 III 59(absence of a right to a post-separation contribution for the cohabiting partner who has given up his or her financial independence)
- BGE 125 V 205(absence of any entitlement to OASI survivors’ pensions for the cohabiting partner)