A prenuptial agreement is much more than a legal precautionary document – it is a key instrument for securing assets, especially for entrepreneurs, heirs and wealthy individuals. The statutory matrimonial property regime of participation in acquired property may often suffice, but it quickly reveals its limitations in the event of separation or divorce. Economic interests, family obligations and emotional tensions can then easily come into conflict.
A practical case study will be used to illustrate the significant consequences that can arise from the absence of matrimonial property regulations, particularly in the event of separation or divorce, and how targeted prenuptial agreements can help to effectively minimise legal and financial risks.
A wealthy Swiss entrepreneur, 58 years old and with two adult children from a divorced first marriage, marries a 25-year-old influencer. The two do not enter into a marriage contract. He is the sole owner of a successful industrial SME, owns several properties in Switzerland and abroad, and has a broadly diversified securities portfolio. She has built up a considerable following on social media, but has no significant assets of her own. During the marriage, she lives a luxurious lifestyle, which he finances. After only three years of marriage, they divorce. The legal consequences are dramatic: the wife claims half of the marital property, including real estate shares and a stake in the company’s value. His children from his first marriage do not agree with this.
To come straight to the point: the wife can claim half of the acquired property, including the increase in value of real estate and shares in the company or even shares. From a legal perspective, without a marriage contract, significant assets, in particular increases in company value, rental income from real estate and income from capital investments, fall under the category of acquired property within the meaning of Art. 197 of the Swiss Civil Code (ZGB), provided they were acquired during the marriage. Upon dissolution of the matrimonial property regime, these assets are subject to equal division (Art. 215 ZGB). Only clearly designated and documented separate property within the meaning of Art. 198 of the Swiss Civil Code is exempt from this. A specifically designed marriage contract, for example by choosing separation of property in accordance with Art. 247 of the Swiss Civil Code or a modified participation in acquisitions, would have prevented the wife from accessing the business assets. A clear separation of private and business assets would also have helped to avoid disputes. Specific design options are explained in more detail below.
In particular, the case highlights the far-reaching consequences that can result from the absence of matrimonial property agreements or precautionary property measures, for example with regard to matrimonial property disputes, access to business assets or the distinction between separate property and acquired property. If children from a first marriage are involved, additional questions arise regarding company and asset succession. How can the matrimonial property claims of a new spouse be prevented from jeopardising the family assets or even affecting the succession of the business? Only through a specific contract.
This case illustrates key issues in Swiss matrimonial law. It exemplifies the legal and practical challenges that can arise when spouses fail to take adequate precautions to protect their assets in the event of separation or divorce.
Legal basis
In Swiss matrimonial law, the property relations between spouses are governed by the system of matrimonial property regimes. These are regulated in the Civil Code (ZGB, SR 210) in Articles 181 to 251 ZGB. In principle, the law distinguishes between the ordinary matrimonial property regime of participation in acquired property and the two extraordinary matrimonial property regimes, namely community of property and separation of property. The latter can be agreed upon in a marriage contract. In the absence of such a contract, the participation in acquired property applies by law (Art. 181 ZGB). It should be noted that the matrimonial property regime once chosen does not bind the spouses for the entire duration of the marriage; it can be changed.
The following section describes in detail the essential elements of the individual matrimonial property regimes, the property aspects they cover, how they relate to each other and how the matrimonial property regime affects the division of property in the event of divorce.
Ordinary matrimonial property regime: Participation in acquired property according to Art. 181 of the Swiss Civil Code
Under the participation in acquired property regime, the assets of both spouses remain separate. Each spouse has two sets of assets: the acquired property and the separate property. Separate property primarily includes items that are used exclusively for the personal use of one spouse and assets that belonged to that spouse at the beginning of the matrimonial property regime or that came into their possession later through inheritance, gift or other means free of charge (such as insurance proceeds from a life insurance policy) (Art. 198 of the Swiss Civil Code). Acquired property, on the other hand, includes everything that was acquired during the marriage in return for payment, in particular income from work, pensions, income from separate property and replacements for acquired property (Art. 197 ZGB).
The special feature of the participation in acquired property only becomes apparent upon dissolution, as this involves a value-based settlement of the acquired property that each spouse has acquired during the marriage. In the division of property, the acquired property of both spouses is balanced, any debts are deducted, and the remaining amount is divided equally between the spouses. Separate property remains unaffected.
The participation in acquired property is dissolved by the death of one spouse, by divorce, separation, annulment of the marriage, change to another matrimonial property regime or by a court order for separation of property (see Art. 204, 185 and 189 ZGB). If the dissolution occurs as a result of death or by contractual agreement to change to another matrimonial property regime, the event of dissolution and the date of dissolution coincide (Art. 204 para. 1 ZGB). In the case of dissolution due to divorce, separation, annulment or a court order for separation of property, however, the effective date is set retroactively to the date on which the corresponding request was filed (Art. 204 para. 2 ZGB).
Community of property pursuant to Art. 221 ff. ZGB
Community of property as a matrimonial property regime can only be established by a publicly certified marriage contract. Unlike in the case of participation in acquired property or separation of property, in the case of community of property, part of the assets belongs to both spouses jointly in the sense of joint ownership. The marital property is divided into the joint property and the respective separate property of both spouses (Art. 221 Swiss Civil Code).
According to Art. 222 para. 2 and 3 Swiss Civil Code, the joint property belongs to both spouses undivided. This means that neither spouse has individual power of disposal over an ideal share of the joint property. The law does not define the scope of the joint property exhaustively, but allows the spouses leeway in their marriage contract. They can choose between general community of property (Art. 222 para. 1 of the Swiss Civil Code), community of acquired property (Art. 223 of the Swiss Civil Code) or another, individually tailored form of community of property (Art. 224 of the Swiss Civil Code) .
In the case of general community of property, all assets and income of the spouses fall within the joint property, with the exception of those assets that are considered separate property by law (Art. 222 para. 1 ZGB). By comparison, community of acquired property limits the joint property to the acquisitions of both spouses (Art. 223 para. 1 of the Swiss Civil Code), whereby the term ‘acquisition’ is defined in accordance with Art. 197 of the Swiss Civil Code.
Art. 224 para. 1 CC also allows spouses to expressly exclude certain assets or types of assets – such as real estate – from the community in their marriage contract. Assets that do not fall within the joint property are considered the separate property of the respective spouse. This separate property may arise on the basis of contractual agreements, through third-party contributions (e.g. gifts or inheritances) or by operation of law (Art. 225 para. 1 ZGB). According to Art. 225 para. 2 CC, statutory separate property includes, in particular, items that serve the personal use of one spouse, as well as claims for compensation within the meaning of Art. 47 and 49 CO.
In the context of the division of property, the separate property of each spouse and the joint property must first be distinguished from each other. As with the participation in acquired property, the date of dissolution of the matrimonial property regime is decisive for the allocation of individual assets (Art. 236 of the Swiss Civil Code).
If the dissolution occurs as a result of the death of one spouse or by contractual agreement of a different matrimonial property regime, each spouse or their heirs are generally entitled to half of the joint property. However, a different division may be agreed in a marriage contract (Art. 241 of the Swiss Civil Code).
If, on the other hand, the marriage is dissolved by a court or an extraordinary matrimonial property regime comes into effect – for example, through a court order for separation of property – each spouse shall take back from the joint property those assets that would be allocated to his or her separate property under the matrimonial property regime of participation in acquired property. Unless otherwise agreed, the remaining joint property is divided equally between the spouses (Art. 242 ZGB).
Separation of property pursuant to Art. 247 ff. ZGB
Like community of property, separation of property is also established by marriage contract. Separation of property can not only be agreed contractually, but also occurs in certain cases by operation of law or by court order. In such constellations, one speaks of extraordinary matrimonial property regime.
Separation of property is characterised by the consistent separation of the spouses’ assets. Unlike in the case of participation in acquired property, there is no mutual participation in the proposal, i.e. in the assets acquired by the other spouse during the marriage. During the marriage, the same provisions apply as for the participation in acquired property. However, in contrast to the participation in acquired property, no consent from the other spouse is required if one spouse wishes to dispose of their share of the joint property (see Art. 646 para. 3 ZGB in conjunction with Art. 201 para. 2 ZGB). According to Art. 247 CC, each spouse manages, uses and disposes of their assets independently within the limits of the law. Such restrictions arise in particular from the general effects of marriage – such as the requirement for consent when selling the marital home (Art. 169 CC) or a court restriction on the power of disposal (Art. 178 CC). Of course, one spouse may voluntarily leave the management of their assets to the other (Art. 195 para. 1 ZGB). If it cannot be determined to which spouse an asset belongs, the law presumes that joint ownership exists (Art. 248 ZGB).
With regard to liability for debts, as with the participation in acquired property, the principle of individual liability applies: each spouse is liable exclusively for their own debts, regardless of the legal transaction from which they originate (Art. 249 ZGB). If, for example, a loan is signed by only one spouse, the other cannot be held liable for it. However, an exception applies to obligations that one spouse enters into as part of daily family needs or with the express authorisation of the other (Art. 166 ZGB).
Options for structuring the marriage contract
In the case described above, a carefully structured marriage contract could have made a significant contribution to avoiding the dramatic financial consequences of the divorce. Such a contract offers numerous legal options that can be individually tailored to the living conditions and protection needs of the spouses. Such an agreement must be officially certified and ideally supplemented by inventories that clearly document the separate property. Case law places high demands on traceability, especially when assets have been mixed.
Regarding the specific options available: one of the most effective measures would have been to choose the matrimonial property regime of separation of property. Under this arrangement, the assets of both spouses remain completely separate and there is no division of acquired property in the event of divorce. This solution offers a high degree of protection, especially for entrepreneurs who do not want to expose the value of their business to the risk of division under matrimonial property law. The husband could thus have prevented half of the increase in value of his business achieved during the marriage from having to be paid out to his wife.
Alternatively, the statutory matrimonial property regime of participation in acquired property could have been retained and specifically modified within a marriage contract. For example, it could have been agreed that certain assets – such as the company, real estate or capital investments – would be classified as separate property, even if they were acquired or developed during the marriage. It would also have been possible to exclude participation in the proposal in whole or in part, or to contractually specify concrete valuation procedures for company participations. Such a valuation clause could have provided for the book value, an agreed lump sum or a multiple valuation procedure in order to avoid uncertainties and disputes in the event of divorce.
In marriage contracts with an entrepreneurial background, the clear separation of business and private assets is also of particular importance. The marriage contract could have stipulated that gifts from the company to the wife, such as the financing of real estate or luxury goods, would not be considered joint property but would fall under separate property. Qualification as a gift is also conceivable. Classification as a gift means that, according to Art. 198(2) of the Swiss Civil Code, the benefit is the separate property of the recipient and is therefore not included in the calculation of the division of acquired property in the event of divorce. It would also have been possible to stipulate repurchase rights, pre-emptive rights or usufruct solutions for real estate in order to prevent an unwanted transfer to the wife or third parties.
Combination with other contracts
In addition, marriage contracts can also be combined with inheritance agreements, especially if there are children from previous marriages. The new wife could waive her statutory inheritance rights in whole or in part under an inheritance contract. Alternatively, it would have been possible to grant her a usufruct instead of full ownership or to contractually secure the succession of the business in favour of the children. After all, compulsory portions of non-joint children cannot be restricted.
Last but not least, it is possible to make financial gifts to the wife outside the marriage contract by means of separate, clearly documented gift agreements. In this way, the husband can act generously without these gifts being taken into account in the matrimonial property settlement. The reason: gifts made during the marriage are legally considered to be the separate property of the beneficiary and are therefore not included in the matrimonial property.
Conclusion
This practical case clearly shows how serious the consequences of not having matrimonial property rules can be, especially for partners with different financial situations. Without a marriage contract, there’s a risk of significant asset transfers in the event of divorce: company assets, investment income, or property gains are considered joint property and have to be split 50/50. This can not only jeopardise private assets, but also affect company succession and family interests. A specifically designed marriage contract could have offered far-reaching protective mechanisms in the case described, either through the choice of separation of property or specific modifications within the community of property. Marriage contracts are not a sign of mistrust, but a means of responsible provision. Those who fail to do so risk a legally ordered distribution of assets with far-reaching consequences in the event of a dispute.
The notary plays a central role in the drafting of a marriage contract, not only as a certifying authority, but also as a qualified advisor. A careful analysis of the individual financial circumstances, family constellations and long-term life plans forms the basis for a legally secure and balanced contractual arrangement. An experienced notary will not only point out the legal scope for flexibility, but will also actively draw attention to possible risks and conflicts of interest and work with the spouses to develop a tailor-made solution.
This expertise should be incorporated at an early stage and used in a targeted manner in order to avoid later disputes and to transfer the assets into the joint future in a legally secure manner.