MARITAL AGREEMENT: WHAT SWISS LAW ALLOWS
The main purpose of a marital agreement is to choose a matrimonial regime different from the one suggested by law, which is the legal regime of participation in acquired property. Very often, the marriage contract aims to adopt the regime of separation of property. But other conventions can be adopted, as can be seen in the hereunder comments:
The inventory of marital property
The contract is used as evidence to determine the ownership of certain assets of the spouses. This evidence may be useful not only in resolving a possible conflict between spouses, particularly at the time of divorce, but also with respect to third parties. All objects for which proof cannot be established are considered to belong half to each spouse.
Loans between spouses (and their remuneration)
For the same reasons, it is possible to include and detail in the marital agreement any debts existing between the spouses. In this case, it may be of interest to seek the advice of a notary in order to determine how to consider the capital gain that the loan and/or its remuneration may have.
Tasks allocation within the couple
The law provides that spouses may decide on this allocation, referring in particular to cash benefits and care for children or assistance provided to the spouse in his or her professional life. This agreement can always be adapted and amended by the spouses.
Splitting of the 2nd Pillar pension fund
It should be remembered that the increase in the pension assets of both spouses is shared equally between the spouses in the event of divorce. This rule is independent of the matrimonial regime chosen by the spouses in their marital agreement. The law prohibits any early waiver in this area.
Allocation of the family home and its furniture
The law requires that one of the spouses may not dispose (sell, encumber with real estate pledges, rent) of the family home without the consent of his or her spouse. By marriage contract, the spouses may waive this protection of the law.
Spouses may supplement their marriage contract with succession provisions. Thus, the conclusion of a marriage contract may be an opportunity for the spouses to reflect in depth on various aspects related to the fate of their assets at the time of their death.
Etienne JEANDIN – Notary in Genève
Summary of the article published in the daily newspaper “Le Temps” on 15 April 2013