The matrimonial regime defines the legal status of spouses' assets. There are two primary types of matrimonial regimes in Switzerland: the legal regime (participation in acquisitions) and the conventional regimes (separation of assets and community of property). The latter is rarely chosen in practice and will not be discussed here.
While there are no significant differences between the participation in acquisitions and the separation of assets regimes during the marriage—where each spouse manages, enjoys, and disposes of their property and is responsible for their own debts—significant differences emerge at the time of liquidation, such as in cases of death or divorce.
The distribution of assets upon liquidation varies depending on the chosen matrimonial regime. The participation in acquisitions regime involves a sharing of certain assets and, therefore, a compensation to the other spouse, whereas the separation of assets regime prescribes a complete dissociation of assets and no compensation.
It should be noted that spouses can, for both types of matrimonial regimes, make internal arrangements within the limits set by the law (Article 182(2) CC).
Participation in Acquisitions (Articles 196-220 CC)
This is the so-called ordinary matrimonial regime, as all people who marry are automatically subject to it (Article 181 CC), unless they choose another regime by agreement.
The composition of assets under the participation in acquisitions regime is defined in Articles 197 and following of the CC and includes: the wife's separate property, the husband's separate property, the wife's acquisitions, and the husband's acquisitions.
Separate Property (Article 198 CC) forms a patrimony for each spouse that is not subject to any claim from the other spouse. Examples of separate property include assets acquired before the marriage regime begins and personal effects of a spouse with exclusive use.
Acquisitions (Article 197 CC) form a special patrimony and are defined as assets acquired by a spouse through onerous title during the marriage regime. Although each spouse has sole ownership and enjoyment of these assets during the marriage, they must compensate the other spouse with half (in value) of their acquisitions upon liquidation. Examples of acquisitions include salaries, tips, income from separate property, and sums received from social security or insurance.
Note that the spouse claiming ownership of an asset must provide proof (Article 200(1) CC). In case of doubt, the asset is presumed to belong in joint ownership to both spouses (Article 200(2) CC) and thus constitutes an acquisition.
At liquidation, an inventory must be prepared to determine each spouse's separate property and acquisitions to establish whether one spouse owes money to the other as participation in the marital benefit.
In other words, the particularity of the participation in acquisitions regime is that each spouse can claim, at the time of liquidation, financial claims against the other spouse equivalent to half of the value accumulated during the marriage (acquisitions), under Article 215(1) CC.
Separation of Assets (Articles 247-251 CC)
This is a conventional matrimonial regime, resulting from a marriage contract (Article 182 CC) made in an authentic form (before a notary, Article 184 CC) before or after the marriage, which deviates from the ordinary regime (participation in acquisitions, Article 181(1) CC). It can be concluded upon the request of the spouses, by law, or by judicial pronouncement.
The specificity of this regime is that the spouses' assets are dissociated as completely as possible. The only potential contentious issue may involve co-owned assets. In other words, the spouses' estates remain entirely separate upon dissolution of the matrimonial regime, and thus no compensation is due to the other spouse.
However, it should be noted that a spouse’s freedom to use and enjoy their assets is limited by their legal obligations towards their spouse and children, such as through a maintenance contribution (Article 125 CC).
Thus, unlike the participation in acquisitions regime, the separation of assets does not involve an actual liquidation and, importantly, the assets are not divided.
If you require further information on this subject, the Valentin Legal Consultation would be pleased to assist you. You can visit us at our offices located at rue du Valentin 1, 1004 Lausanne, or contact us by phone at +41 21 351 30 00 or by email at info@cjdv.ch.
Sources:
Olivier Guillod, Sabrina Burgat, Droit des familles, 5th edition, Basel, 2018.
Émilie M. Praz, “Le choix d’un autre régime matrimonial”, L’entreprise de l’un des époux en droit matrimonial, Zürich, 2018.
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