The matrimonial regime determines the rules applicable to the financial relations between spouses during the marriage and upon its dissolution. Under Swiss law, the Civil Code (SCC) provides for three matrimonial regimes: participation in acquisitions (arts. 196–220 SCC), which constitutes the ordinary statutory regime, community of property (arts. 221–246 SCC) and separation of property (arts. 247–251 SCC). Spouses may choose their regime or organise the statutory regime by notarised marriage contract (art. 182 SCC). PBM Avocats advises future spouses on the choice of their regime, drafts marriage contracts and assists clients in matrimonial regime liquidations upon divorce.
Participation in Acquisitions: The Ordinary Statutory Regime
In the absence of a marriage contract, spouses are subject to the participation in acquisitions regime from their marriage. This regime rests on a distinction between two asset pools for each spouse: own assets and acquisitions. Own assets (art. 198 SCC) comprise assets brought to the marriage, assets received during the marriage gratuitously (inheritance, gift) and assets intended for the exclusive personal use of one spouse (personal effects, work tools). Acquisitions (art. 197 SCC) encompass all assets acquired for consideration during the marriage, notably using work income, and the income from own assets.
Upon dissolution of the regime, each spouse takes back their own assets. The net acquisitions of each spouse — after deduction of related debts — are added together, and half of the total accrues to each spouse (art. 215 SCC). Reimbursements may be due between the pools when one pool has contributed to the acquisition, improvement or preservation of assets of the other pool (arts. 206–209 SCC). These calculations can be complex, particularly upon liquidation of real property financed partly from own funds and partly from acquisitions.
Separation of Property: Complete Asset Independence
The separation of property regime (arts. 247–251 SCC) is the regime of complete asset independence: each spouse retains ownership, management and enjoyment of their own assets, alone bearing the debts and risks. There is no common pool, and dissolution of the marriage does not entail any specific liquidation of the regime: each spouse simply takes back the assets belonging to them. This regime is particularly suitable for entrepreneurs, liberal professionals and persons whose assets are of very different natures.
Separation of property may be adopted by marriage contract or ordered judicially at the request of one spouse if the other manages their assets poorly or creates financial risks for the family (art. 185 SCC). PBM Avocats frequently advises clients on the advisability of adopting this regime, notably in situations where one of the spouses carries on a commercial activity involving significant financial risks.
Community of Property and the Marriage Contract
The community of property regime (arts. 221–246 SCC) involves pooling a significant proportion of the spouses' assets. It is composed of three pools: the common assets (assets acquired before and during the marriage, with exceptions), the husband's own assets and the wife's own assets. Upon dissolution of the regime, the common assets are in principle shared equally. Community of property, considerably more cumbersome to manage, is little chosen in Switzerland today; it is better suited to specific asset situations.
The marriage contract is the instrument by which spouses organise their financial relations according to their needs (arts. 182–184 SCC). In addition to choosing an alternative regime, it allows the statutory participation in acquisitions regime to be organised, for example by modifying the distribution key for acquisitions (attribution of up to all acquisitions to the surviving spouse), excluding certain assets from acquisitions, or providing for specific arrangements for particular assets (family property, company shares). These arrangements have important tax and succession consequences that must be examined carefully.
Liquidation of the Matrimonial Regime on Divorce
Liquidation of the matrimonial regime is often one of the most complex aspects of a divorce, particularly when the spouses have significant or composite assets. For participation in acquisitions, liquidation involves reconstituting each spouse's asset pools at the date of dissolution of the regime, identifying the reimbursements due between the pools, and valuing the acquisitions and own assets. The most frequent practical difficulties concern real property (notably the family home), company shareholdings, stock options, foreign bank accounts and contributions of own funds into acquisitions.
PBM Avocats assists its clients in matrimonial regime liquidations, whether they take place in the context of an amicable agreement or contentious proceedings. We work in close collaboration with financial and tax experts when the assets to be valued are complex. Liquidation must be dealt with simultaneously with the divorce proceedings and integrated into the divorce agreement or the judgment, which requires rigorous coordination between the different aspects of the file.
Frequently Asked Questions on the Matrimonial Regime
What matrimonial regime applies if the spouses have not concluded a marriage contract?
In the absence of a marriage contract, Swiss spouses are subject by operation of law to the participation in acquisitions regime, the ordinary statutory regime provided for in arts. 196 to 220 SCC. This regime distinguishes two asset pools for each spouse: own assets (assets brought to the marriage, received gratuitously by inheritance or gift during the marriage, and assets serving exclusively for personal use, art. 198 SCC) and acquisitions (assets acquired during the marriage for consideration, notably through work income, art. 197 SCC). Upon dissolution of the regime, each spouse takes back their own assets; the acquisitions of each spouse are added together, less related debts, and the net surplus is shared equally between the spouses (art. 215 SCC).
How to conclude a marriage contract under Swiss law?
The marriage contract must be executed in authentic form before a notary to be valid (art. 184 SCC). It may be concluded before or during the marriage. It is possible to adopt a different regime from the statutory regime (community of property or separation of property), or to organise the statutory participation in acquisitions regime, for example by modifying the spouses' share of participation in the liquidation, including certain own assets in the acquisitions or vice versa, or by providing for clauses benefiting the surviving spouse. The marriage contract is subject to public notice: it is registered in the civil status registers, making it enforceable against third parties (art. 248 SCC).
What is the difference between community of property and separation of property?
Under the community of property regime (art. 221 et seq. SCC), spouses in principle share all their assets in a common pool. Each spouse retains their own assets (personal use assets, personal damages), but assets acquired before and during the marriage enter the common assets. Upon dissolution of the regime, the common assets are shared equally, unless otherwise agreed. This regime is little used in practice today. Separation of property (art. 247 et seq. SCC) is at the opposite end: the regime of complete asset independence: each spouse remains sole master of their assets, manages them freely and alone bears the profits and losses. There is no liquidation as such: upon dissolution of the marriage, each spouse simply takes back what belongs to them. This regime is often preferred by entrepreneurs or in complex mixed-nationality marriages.
How is the matrimonial regime liquidated in the event of divorce?
Liquidation of the matrimonial regime occurs upon its dissolution, that is at the time of divorce, death or legal separation judgment. For the participation in acquisitions regime — the most common — liquidation proceeds in several stages: each spouse identifies and takes back their own assets, the net acquisitions of each spouse are calculated (acquisitions assets less liabilities), then half of each spouse's net acquisitions is attributed to the other. Liquidation can be complex, particularly in the presence of mixed assets (reimbursements between pools), real property, company shareholdings or assets abroad. PBM Avocats assists its clients in complex liquidations, in collaboration with financial experts if necessary.
Do debts contracted by one spouse bind the other spouse?
As a general rule, each spouse is personally liable for their own debts, regardless of the matrimonial regime (art. 202 SCC for participation in acquisitions). However, debts contracted for the ordinary needs of the family bind both spouses jointly and severally (art. 166 SCC), even if only one of the spouses contracted them. Debts encumbering a spouse's acquisitions reduce their value upon liquidation. Under the community of property regime, the rules are different and may lead to the common assets being engaged for the debts of one spouse alone under certain conditions (art. 233 et seq. SCC). It is important to clarify these rules before contracting debts or undertaking a commercial activity during the marriage.