Overview of the matrimonial property scheme under the Swiss Civil Code (ZGB)
- joint ownership of acquired property
- joint property
- separation of property.
The law of property is regulated starting with Art. 181 ZGB. Unless spouses regulate otherwise, they will automatically fall under the matrimonial regime of joint ownership of acquired property. Therefore, this is called the ‘statutory property regime’. If the couple wishes to agree on joint property or separation of property, they must do so in a marriage contract. The matrimonial property regime can also be specified after the wedding.
Calculate the acquired property
Since matrimonial property is always divided before the estate is calculated, this term is relevant in inheritance law. The result of the calculation of the acquired property is called the ‘surplus’ and is divided equally between the spouses.
The acquired property of a spouse includes different kinds of income. Therefore, important components of acquired property include not only wages, but also benefits from staff pension funds, social insurances and social care institutions. Furthermore, compensation due to inability to work, income from personal property (such as interest from bank balances) and replacement costs (such as a car financed through wages) are included.
Dividing matrimonial property is easy if an object was financed from a single asset. A house that a spouse inherits from their parents and renovates with funds from their personal property remains their personal property. But the division isn’t so simple if funds from both assets (assets from acquired property and personal property) are intermixed. In this scenario, claims to compensation between the various types of assets exist.
Example calculating the acquired property
The husband buys a sailing boat for 30,000 CHF. 20,000 CHF comes from the joint acquired property assets and the wife adds 10,000 CHF from her personal property. During the division of matrimonial property, the wife has a compensation claim against the acquired property for 10,000 CHF. This means the 10,000 CHF will be re-allocated to her personal property. And the remaining 20,000 CHF value of the sailing boat will be part of the acquired property.
If added value has accrued (which is frequently the case with property), a participation in that value exists. The added value is divided proportionately among the assets that financed the object. If the sailing boat described above is sold for 39,000 CHF when the matrimonial property is divided, the wife’s compensation claim will participate in this profit. She will receive 13,000 CHF back. Since she co-financed 1/3 of the boat, she also participates in 1/3 of the value increase and receives 3,000 CHF in personal property. The acquired property thus still amounts to 26,000 CHF.