Posts
By
Jeremy D. Morley
Switzerland: Divorce
Jurisdiction
The Swiss courts have divorce jurisdiction if the plaintiff
is domiciled (which essentially means permanently resident) in Switzerland, or
if the defendant is domiciled in Switzerland, or if the plaintiff is a Swiss
national residing in Switzerland. Article 51, Swiss Statute on Private
International Law.
In addition, the Swiss courts will have divorce jurisdiction if
only one spouse is a Swiss national if “the action cannot be brought at the
domicile of either spouse or cannot reasonably be required to be brought
there.” (Article 60, Swiss Statute on Private
International Law).
Switzerland: Law Applicable
to Matrimonial Property and Divorce
Once a Swiss court has divorce jurisdiction it will also
have jurisdiction to handle all matters concerning the effect of the marriage
on the parties’ property and on the division of matrimonial property. (Article
51, Swiss
Statute on Private International Law).
Switzerland authorizes the
spouses to select the law that will govern their matrimonial property
relations. (Article 52, Swiss Statute on Private
International Law). Such choice may be made in writing or “result with
certainty from the provisions of a marital property agreement.” (Article 53). A
choice of law may be made or amended at any time. A choice of law made after
the marriage
celebration has retroactive effect as of the date of the marriage, unless
otherwise agreed. The chosen law remains applicable as long as the spouses have
not amended or revoked such choice. (Article 53, Swiss Statute on Private
International Law).
If the spouses do not make a proper
choice of law, their matrimonial property relations will be governed by the law
of the country in which they are both domiciled or, in the absence of a shared
current domicile of both spouses in the same country, by the law of the last
country in which they were both domiciled at the same time. If they
never shared a common domicile their common national law will apply and if they
have no common nationality then Swiss law will apply. (Article 54, Swiss
Statute on Private International Law).
If the spouses’ domicile is
transferred from one state to another, the law of the new domicile applies and
has retroactive effect as of the day of the marriage. Spouses may exclude
retroactivity by so agreeing in writing. A change of domicile has no effect on
the applicable law if the spouses have agreed in writing to continue the
application of the former law or if they are bound by a marital property
agreement. (Article 55, Swiss Statute on Private
International Law)
Switzerland:
Prenuptial and Post-Nuptial Agreements
Prenuptial and postnuptial agreements are binding under
Swiss law provided they fulfill certain statutory requirements. They must be
entered into by means of a “notarial deed.” (Art. 184, Swiss Civil Code). The
notary has a duty to ascertain that the contract is based on the free will of
the parties and is in accordance with the law. The notary also has to explain
to the parties their current legal status and the changes that the marital
contract will provide, ensure that the parties understand the meaning of the
contract and ensure that the contractual provisions are in accordance with the
wishes of the parties. However, if the notary does not fulfill such
obligations, the contract remains valid, although the notary may be sued for
damages. The registration of marital agreements was abolished in 1988.
Prenuptial agreements enter into force upon the solemnization of the marriage (Art. 182,Swiss Civil Code). Spouses may enter into a marital agreement or modify or annul a prenuptial agreement at any time during their marriage.
Full disclosure of the spouses’ assets and debts is not necessary. However, the general rules of contract law apply, so that a marriage contract might be invalidated by reason of fundamental mistake, fraudulent misrepresentation or duress (Arts 23 et seq. and 28 et seq. Swiss Code of Obligations), or the general rule prohibiting an abuse of a right (Art. 2 para. 2 Swiss Civil Code) may apply.
A marital contract containing provisions regarding the matrimonial property regime, and that does not provide for the other effects of a divorce, qualifies as a marital contract, and is not subject to judicial review for fairness. On the other hand, an agreement intending to lead to a divorce is dealt with differently from a marriage contract and is subject to judicial control (Art. 140, Swiss Civil Code).
The spouses may only choose, change or modify their property regime within the boundaries of the Swiss law, Art. 182 (2), Swiss Civil Code. They may choose between the statutory property regimes. Whichever regime they choose may only be modified in specifically authorized ways and to a specifically authorized extent. The spouses cannot create their own regime. However, they may regulate certain issues regarding property law by a simple written contract in writing, but such an agreement does not qualify as a marriage contract.
Thus, under the property regime of participation in acquisitions, the spouses may deviate from the rules on the participation in the increased value of an asset in the case where one spouse has invested in the other’s assets, Art. 206 (3), Swiss Civil Code.
Under participation in acquisitions, the spouses may designate business assets that would otherwise belong to the marital property as separate property, Art. 199 para. 1 Swiss Civil Code; they may also assign revenue generated from separate property to the separate property (Art. 199 (2) Swiss Civil Code).
Under community of property, the spouses may modify the assets that belong to the common property (Art. 223 Swiss Civil Code).
Prenuptial agreements enter into force upon the solemnization of the marriage (Art. 182,Swiss Civil Code). Spouses may enter into a marital agreement or modify or annul a prenuptial agreement at any time during their marriage.
Full disclosure of the spouses’ assets and debts is not necessary. However, the general rules of contract law apply, so that a marriage contract might be invalidated by reason of fundamental mistake, fraudulent misrepresentation or duress (Arts 23 et seq. and 28 et seq. Swiss Code of Obligations), or the general rule prohibiting an abuse of a right (Art. 2 para. 2 Swiss Civil Code) may apply.
A marital contract containing provisions regarding the matrimonial property regime, and that does not provide for the other effects of a divorce, qualifies as a marital contract, and is not subject to judicial review for fairness. On the other hand, an agreement intending to lead to a divorce is dealt with differently from a marriage contract and is subject to judicial control (Art. 140, Swiss Civil Code).
The spouses may only choose, change or modify their property regime within the boundaries of the Swiss law, Art. 182 (2), Swiss Civil Code. They may choose between the statutory property regimes. Whichever regime they choose may only be modified in specifically authorized ways and to a specifically authorized extent. The spouses cannot create their own regime. However, they may regulate certain issues regarding property law by a simple written contract in writing, but such an agreement does not qualify as a marriage contract.
Thus, under the property regime of participation in acquisitions, the spouses may deviate from the rules on the participation in the increased value of an asset in the case where one spouse has invested in the other’s assets, Art. 206 (3), Swiss Civil Code.
Under participation in acquisitions, the spouses may designate business assets that would otherwise belong to the marital property as separate property, Art. 199 para. 1 Swiss Civil Code; they may also assign revenue generated from separate property to the separate property (Art. 199 (2) Swiss Civil Code).
Under community of property, the spouses may modify the assets that belong to the common property (Art. 223 Swiss Civil Code).
Switzerland:
Division of Assets on Divorce
If the parties have selected a marital regime in a manner
that is effective under Swiss law, that regime will govern the parties’ asset
relationship.
If the parties have selected a foreign law to govern their
relationship in a manner that is effective under Swiss law, that law will
govern the parties’ asset relationship.
If there has been no such selection of a marital regime or a
foreign law, the default Swiss property regime of “ participation aux acquêts” (shared
acquired property) will apply. Under that regime, the assets that each spouse
owned before the marriage or received through gift or inheritance after the
marriage are not shared between the spouses. However, the assets that either or
both of them acquire during the marriage are required to be shared. (Arts.
196-220, Swiss Civil Code).
Switzerland:
Recognition of Foreign Divorces
Foreign decrees of divorce or separation are required to be
recognized in Switzerland if they are rendered in the state of domicile or
habitual residence, or in the national state, of either spouse, or if they are
recognized in one of those states. However, a decree that was rendered in a
state of which neither spouse or only the plaintiff spouse is a national shall
be recognized in Switzerland only if :
a. at the time of filing the
action, at least one of the spouses was domiciled or had his or her habitual
residence in that state and the defendant spouse was not domiciled in
Switzerland; or
b. the defendant spouse submitted
to the jurisdiction of the foreign court without reservation; or
c. the defendant spouse expressly
consented to recognition of the decree in Switzerland.
(Article 65, Swiss Statute on Private International Law).
a. they were rendered, or are recognized, in the state of
domicile of the defendant spouse; or
b. they were rendered, or are recognized, in the state of
domicile of the plaintiff spouse, provided that the defendant spouse was not
domiciled in Switzerland; or
c. they were rendered, or are recognized, in the state whose
law applies to the marital property relations pursuant to this Act; or
d. to the extent that they relate to real property, if they
were rendered, or are recognized, in the state in which such real property is
located. (Article 58, Swiss Statute on Private
International Law).
