Matrimonial Property Regimes in Switzerland

Three Regimes (art. 181 et seq. CC)

Default: participation in acquired property (art. 196 et seq. CC). Alternatives by marriage contract: community of property (art. 221 et seq. CC) or separation of property (art. 247 et seq. CC).

Participation in Acquired Property

Four categories: own property of each spouse (art. 198 CC: pre-marital, inherited/gifted, personal, moral damages) and acquired property of each spouse (art. 197 CC: employment income, property income, social insurance, incapacity compensation).

Each spouse administers independently during marriage (art. 201 CC). Upon dissolution: each takes back own property and is entitled to half the other's net acquired property (art. 215 para. 1 CC).

Community of Property (art. 221-246 CC)

Property combined into a common pool (art. 222 CC). Joint administration (art. 227 CC). Divided equally upon dissolution (art. 241 CC).

Separation of Property (art. 247-251 CC)

Each spouse retains full ownership and administration (art. 247 CC). No division upon divorce.

Marriage Contract

Must be in authenticated form before a notary (art. 184 para. 1 CC). May be concluded before or during marriage, modified at any time. Cannot create a regime not provided by law (art. 182 para. 2 CC). Cannot prejudice creditors (art. 193 CC).

Liquidation Upon Divorce

1. Identify and value assets (art. 214 para. 1 CC)
2. Calculate each spouse's profit (acquired property minus debts, art. 210 CC)
3. Divide: each entitled to half the other's profit (art. 215 para. 1 CC)
4. Compensations for cross-financing (art. 209 CC)

ATF 141 III 53: valuation must reflect market value close to the liquidation date.