The provisions on matrimonial regimes define who owns the property during marriage and how that property should be divided in the event of divorce or the death of one of the spouses. There are three types of matrimonial regimes: participation in acquisitions, community of property, and separation of property.
The ordinary legal regime is the regime of participation in acquisitions. It applies when the spouses have not opted for another matrimonial regime by concluding a marriage contract in authentic form. Under this regime, there are two sets of assets. First, there are the personal assets of each spouse. Then, there are the acquisitions of each spouse. The personal assets do not need to be shared, either during the duration of the regime or upon its dissolution. These include assets owned by each spouse at the time of marriage, assets reserved for personal use (e.g., musical instruments, clothing, cosmetics, etc.), as well as assets received for free (e.g., gifts, inheritances). In contrast, the participation in acquisitions regime shares equally between spouses the value of assets acquired for consideration during the marriage (the acquisitions), regardless of each spouse's contribution (not taking into account their income or differences in earnings). The acquisitions notably include the products of their respective labor, sums paid by social security institutions, and the income from their respective personal assets.
In the community of property regime, there are three sets of assets: the common property that forms one set, and the personal assets of each spouse that form two separate sets. We will not detail this regime as it is very rarely chosen in practice.
Regarding the separation of property regime, it is important to mention that the assets of each spouse are completely separate. Thus, the liquidation of the matrimonial regime is very straightforward. Indeed, there will be no sharing of property between the spouses, meaning each spouse will retain all their assets.
Under the participation in acquisitions regime, it can also happen that a judge pronounces a separation of property at the request of one spouse, in the presence of justifiable reasons (art. 185 CC). This is an extraordinary regime. For example, we might think of a situation where one spouse is over-indebted. In such a case, mutual participation in acquisitions loses its rationale, and the estates must be dissociated.
We will now analyze how the liquidation of the matrimonial regime proceeds when the spouses are under the participation in acquisitions regime. First, it will be necessary to determine the assets belonging to each spouse (ownership). Next, we will need to identify the personal assets and the acquisitions of each spouse. Furthermore, it will be necessary to establish the assets and liabilities of the acquisitions and personal assets (settlement of debts and variable claims between the spouses). Finally, it will be essential to calculate the benefit of the marital union and share it between the spouses (art. 215 CC) (TF 5A_621/2013 of November 20, 2014).
When an asset is acquired, it enters into the set that financed the acquisition, by patrimonial subrogation (e.g., a carpet purchased with money from an inheritance will be a personal asset). If the acquired asset was financed by both the acquisitions and personal assets, it enters into the set that made the largest quantitative investment. However, the set to which the asset is not integrated has a variable reward against the other corresponding to the value of its investment and proportional to the gain or loss incurred by the asset at liquidation (art. 209 para. 3 CC).
Now let us imagine that spouses have acquired a jointly owned property in equal shares. Even if the contributions of Spouse A and Spouse B are equal, it is still necessary to consider the source of the funds contributed by each spouse. Let’s assume that Spouse A contributed 200,000 francs from personal assets and 100,000 francs from acquisitions, while Spouse B contributed 100,000 francs from personal assets and 200,000 francs from acquisitions. Spouse A's share of ownership was primarily acquired through their personal assets and thus falls into their personal assets. The opposite solution applies to Spouse B. Let’s imagine that the value of Spouse A’s share of ownership increased from 300,000 to 360,000 francs, representing a gain of 20%. Therefore, Spouse A’s acquisitions have a reward of 120,000 francs against their personal assets, in accordance with art. 209 para. 3 CC. For the same reasons, the reward owed by Spouse B’s acquisitions to their personal assets is also 120,000 francs.
It should be noted that the liquidation of the matrimonial regime does not require the spouses to end the joint ownership. However, it sometimes happens that the spouses decide that one of them will take over the property alone. In such a case, the joint ownership must be liquidated before liquidating the matrimonial regime. Let’s imagine that Spouse A takes over the property; they will have to reimburse Spouse B, as part of the joint ownership liquidation, half of the property’s value at the time of liquidation. The matrimonial regime can then be liquidated according to ordinary rules. Thus, the benefit of each spouse’s acquisition account must be shared equally between Spouses A and B.
Do you want more information on this issue? The legal consultation service at Valentin would be happy to welcome you to its offices located at rue du Valentin 1, 1004 Lausanne, to advise you and answer any questions you may have. You can also reach us by phone at 021 351 30 00 and by email at info@cjdv.ch.
Comentarios