In Switzerland, marriage automatically affects the spouses' property and finances.
Without a specific agreement, the ordinary matrimonial property regime of participation in acquisitions applies.
A marriage contract allows the spouses to modify this regime or choose another one. It sets out how property and debts will be managed during the marriage and divided in the event of divorce or death.
Choosing another matrimonial property regime
The spouses can choose the arrangement that best suits their personal, family or professional situation:
- Separation of property: Each spouse remains the owner of their property, manages it independently and is responsible for their own debts. This regime may be particularly relevant for self-employed people.
- Community of property: Certain assets and income are combined into joint property belonging to both spouses.
- A choice limited by law: The spouses must choose a regime recognised by Swiss law. They cannot freely create a hybrid regime or limit the separation of property to selected assets.
Protecting the surviving spouse
The marriage contract can also change how property is divided and improve the position of the surviving spouse:
- Changing the division of the surplus: Under the participation in acquisitions regime, the spouses may agree on a division other than an equal split. In particular, they may allocate the entire surplus to the surviving spouse. The statutory entitlements of children who are not common to both spouses must nevertheless be respected.
- Following the required form: The contract must be executed as a public deed before a notary or another authorised public official. Otherwise, it is invalid. If it regulates certain consequences of a possible divorce in advance, the court will review those clauses and may reject them if they are unfair or unclear.
The marriage contract therefore sets the rules that apply in the event of divorce or death. Any advantage granted to the surviving spouse must not infringe the children's statutory entitlementOur article on AI in family law explains how artificial intelligence can be used in this field.
Legal sources
Federal legislation:
- Art. 181 SCC (application of the ordinary matrimonial property regime of participation in acquisitions when no marriage contract exists).
- Art. 182 SCC (conclusion of a marriage contract before or after marriage and the statutory limits on choosing a matrimonial property regime).
- Art. 216 SCC (possibility of changing the division of the surplus by marriage contract and protection of the statutory entitlements of children who are not common to both spouses).
- Art. 56 PILA (formal validity of a marriage contract under private international law).
Federal case law:
- Federal Supreme Court judgment 5A_907/2019 (prohibition of hybrid matrimonial property regimes and of separation of property limited to selected assets). Note: This decision is more than two years old; its current legal relevance should be checked.
- BGE 121 III 393 (judicial approval of clauses in prenuptial agreements that regulate the consequences of a possible divorce in advance). Note: This decision is more than two years old; its current legal relevance should be checked.
- BGE 137 III 113 (compliance with the formal requirements for a marriage contract as a condition for changing the division of the surplus in favour of the surviving spouse). Note: This decision is more than two years old; its current legal relevance should be checked.
- BGE 82 II 477 (classification of the contractual allocation of the surplus to the surviving spouse as an inter vivos matrimonial property transaction not subject to reduction under inheritance law). Note: This decision is more than two years old; its current legal relevance should be checked.