Table of contents
Legal basis
When a prenuptial agreement makes sense - typical occasions and life situations
What can be regulated in a prenuptial agreement
Practical example: Division of assets with and without a marriage contract
Establishment of a marriage contract
Common mistakes and uncertainties surrounding prenuptial agreements
Early planning brings security
Arrange a consultation
Legal background: The three matrimonial property regimes in Switzerland
In Switzerland, there are three legally defined matrimonial property regimes:
Profit sharing
Without a special agreement, all married couples are automatically subject to the participation in acquired property as the ordinary matrimonial property regime. The joint marital property regime divides the marital assets of each partner into two categories: separate property and acquired property. Own property includes all assets that a spouse already owned before the marriage, as well as gifts or inheritances received during the marriage. Personal items (e.g. clothing, jewellery) also count as personal property. In contrast, the marital estate comprises the assets jointly acquired during the marriage, such as income, savings, interest or pension assets. In principle, each spouse manages their own assets and is only liable for their own debts.
In the event of a divorce, the property acquired during the marriage is divided equally between the spouses under the matrimonial property regime; the spouses' separate property remains untouched. In the event of death, the division under matrimonial property law takes place first: the surviving partner receives half of the accrued property, while the other half of the accrued property is included in the estate together with the deceased's personal property. According to the standard legal model, the surviving partner and the children each receive an equal share of this estate as heirs. The legal regulation often means that, for example, a large part of the joint savings or even the home does not go entirely to the surviving partner, but instead goes proportionately to the children. Without further precautions, this can mean that a property has to be sold or mortgaged in order to pay off the descendants' claims.
The community of property
In the case of community of property, the assets and income of both partners are generally combined to form a joint property. Each spouse retains only their personal effects as their own property; everything else - namely assets brought into the marriage or assets inherited during the marriage - becomes part of the joint property. Both spouses manage this joint property jointly, but are also both liable for its debts. If the community of property is dissolved (through divorce or death), each spouse receives half of the community property.
Due to the complete commingling of assets, the community of property harbours certain risks: Self-employed persons or entrepreneurs in particular often avoid it, as the entire joint assets would also be liable in the event of business debts. However, a marriage contract can flexibly organise the community of property - for example, as a limited community of property in which certain assets are excluded from the joint property. For example, it can be agreed that a business run by the spouse or an inherited family home remains separate property and does not flow into the joint assets.
The separation of property
The third matrimonial property regime, separation of property, completely separates the assets of the spouses. Each party retains their own assets and bears their own debts - there are no joint marital assets. Consequently, in the event of a divorce, there is no equalisation payment under matrimonial property law; each party takes their own assets with them. If a spouse dies under the separation of property regime, all of their assets belong to the estate. There is no property settlement. Separation of property can be particularly worthwhile if there is a risk of over-indebtedness or if an asset is to be specifically protected. Both separation of property and community of property can only be established by means of a marriage contract.
When a prenuptial agreement makes sense - typical occasions and life situations
Whether a marriage contract is necessary in individual cases depends on the individual life situation. Many couples get on well with the standard statutory model of participation in accrued gains. However, there are certain situations in which a customised prenuptial agreement offers clear advantages: This becomes particularly clear when unequal financial circumstances or special risks are brought into the marriage.
Large differences in wealth
If one partner brings significantly more assets into the marriage, a marriage contract can benefit both parties. If you switch to community of property, the economically weaker partner receives half of the joint assets in the event of divorce or death and is therefore better protected. Conversely, the wealthier partner can protect their pre-marital assets by declaring parts of them as their own property. The marriage contract thus creates a balance between protection and self-determination.
Self-employment and starting a business
If one of the spouses is an entrepreneur or is planning to set up a business, it is particularly worth looking at the matrimonial property regime. Without a special agreement, a company founded during the marriage is part of the marital property. The value of the company would therefore be divided equally with the spouse in the event of divorce. For the company owner, this can mean that they have to pay out their partner, which may jeopardise the financial substance of the company. A marriage contract can provide for this: for example, you could agree on the separation of property or explicitly define the company as your own property so that you do not have to divide the "fruits of your labour" in the event of a divorce. This leaves the entrepreneur's life's work untouched, while the other partner can still be treated fairly through other contractual arrangements (such as a favourable inheritance arrangement or maintenance agreements).
Patchwork families
In families with children from previous relationships, so-called patchwork families, complex inheritance law issues often arise in the event of divorce or death. The statutory matrimonial property regime hardly takes into account the special needs of such constellations. This is where a marriage contract in conjunction with customised estate planning can be particularly useful. For example, it can ensure that in the event of death, the surviving spouse receives the entire jointly generated share, while the children from the first marriage receive a share of the remaining assets. Without a contractual arrangement, the surviving stepparent would often legally receive less, while the children (including minors) automatically inherit - which can lead to conflicts. Experts emphasise that forward-looking planning is essential for patchwork families.
A marriage contract increases the room for manoeuvre: it can structure the property situation in such a way that both the new partner is protected and the children from the previous partnership are not neglected. A suggested allocation is often agreed in order to maximise the benefits for the surviving spouse. In any case, a marriage contract in patchwork situations should be combined with a suitable inheritance contract or will so that all parties involved are provided for in accordance with their joint wishes in the event of an emergency.
What can be regulated in a prenuptial agreement
A marriage contract enables couples to organise their property relations individually. In addition to switching from a division of accrued gains to separation of property or community of property, adjustments can also be agreed within the ordinary matrimonial property regime. A modified division of property is often chosen, in which certain assets or income, such as income from investments, dividends or a company built up during the marriage, are regarded as separate property. This means that they remain with the spouse concerned in the event of divorce. This is particularly advantageous for entrepreneurs or people with large assets. In addition, a marriage contract can provide for death benefits that go beyond the legal requirements.
Proposal allocation
One of the most important structuring options is the aforementioned proposal allocation. A proposal is the part of the assets that is to be divided equally upon dissolution of the joint marital property (the joint marital property created during the marriage). Unless otherwise agreed, each spouse receives half. However, it can be agreed in a marriage contract that in the event of death, the surviving spouse should receive the entire proposal. In this case, the deceased person's estate would only consist of their own property, while the entire joint savings would remain with the surviving partner. This arrangement ensures that the surviving spouse is better protected financially and can, for example, keep a jointly owned home in its entirety without having to pass on half of the assets accumulated during the marriage to their descendants.
However, the limits of the right to a compulsory portion must be observed: As long as there are only joint children, the law allows such favouritism and the joint descendants must accept a reduced inheritance share. However, if there are no joint children, their compulsory portions may not be reduced by tricks under matrimonial property law. In such constellations, for example, supplementary inheritance agreements (e.g. an inheritance contract with the children) are required in order to favour both the spouse and protect the children's claims.
Allocation of specific assets
In addition to the proposed allocation, a marriage contract also allows for the specific distribution of individual assets. For example, it can be agreed that a certain property or the family business will not become part of the overall estate, but will remain the property of the original owner. Conversely, couples can also decide to deliberately make more assets joint property, for example in order to achieve a more equal division in the event of divorce. Overall, the prenuptial agreement therefore offers a great deal of scope for adapting the asset situation to personal preferences.
However, there are also areas that cannot be regulated in a marriage contract. These include, in particular, issues relating to maintenance or custody, but also pension equalisation or provisions that violate applicable law or are immoral.
Practical example: Division of assets with and without a marriage contract
To make the effects of a prenuptial agreement more tangible, let's look at a simplified example - one without contractual arrangements and one with a prenuptial agreement. Let's assume that Anna and Ben have been married for many years, have two grown-up children together and a home that they bought together during the marriage with assets saved up during the marriage. Anna works part-time and Ben runs his own small business. Unfortunately, Ben dies unexpectedly.
Without a marriage contract (participation in accrued gains)
In this case, the law automatically applies. First, the matrimonial property regime is dissolved: Anna, as the surviving spouse, receives half of the joint property acquired during the marriage, while Ben's remaining share (the other half) is included in his estate together with Ben's personal property. The estate is then divided according to inheritance law: As there are two children, Anna is entitled to 50 % of the estate assets and the children jointly to the remaining 50 %. In concrete terms, this means that Anna ends up with three quarters of the joint household effects and assets, while the children together receive a quarter. With regard to the home, this results in a complex situation: Anna now owns 75 % of the house, but 25 % belong to the children. If Anna wants to stay in the house, she must theoretically pay off the children. In many cases, without a prenuptial agreement, the surviving spouse has no choice but to sell or mortgage the property in order to pay out the children's inheritance claims in cash. Ben's company is also part of the estate. Anna inherits part of it, but as a layperson she cannot continue to run the company; a complex division or sale of the company share to a third party is on the cards. All of this happens during an already difficult period of mourning and harbours conflict for the family.
With marriage contract
Suppose Anna and Ben had concluded a prenuptial agreement in good time to mitigate precisely such consequences. For example, they could have agreed that in the event of death, the entire proposal - i.e. the assets built up jointly during the marriage - would go to the surviving partner (proposal allocation). In our example, the house would remain with Anna for 100 %. For the children, only Ben's personal property would be included in the estate, to which they can assert their statutory inheritance claims. As Ben's personal assets (e.g. personal savings or pre-marital assets) are rather small compared to the value of the house, the children do not go away empty-handed, but they receive a significantly smaller share than without a contract. Anna can keep the familiar home without having to pay anyone out and is financially secure. With regard to the company, the marriage contract could also have agreed on the separation of property for Ben's business, so that the company would remain completely out of Anna's reach and could, for example, be transferred or sold directly to a business partner or the two children working in the company without being included in the property settlement.
This spares Anna a lengthy division of assets in court and she can decide on the inheritance together with the children in peace. Ben, for his part, would have known during his lifetime that his family would be as financially secure as possible and that his life's work (house and company) would remain in the right hands.
(Note: The exact amount of the inheritance shares and compulsory portions may vary depending on the constellation).
Establishment of a marriage contract
In Switzerland, the drafting of a marriage contract is subject to formal requirements. A marriage contract must be publicly notarised. Both spouses must be present and agree to the content of the contract before they sign it. Without this notarisation, the contract is legally invalid. The fees for drawing up a prenuptial agreement are regulated at cantonal level, but are generally within a manageable range, especially compared to the potential costs of divorce proceedings.
The question often arises as to when is the best time to conclude a prenuptial agreement. In principle, a prenuptial agreement can be concluded before the marriage or at any time during the marriage. Many couples decide in favour of this before the wedding in order to create clear conditions from the outset. It is advisable to address the issue early on, as drawing up a fair contract takes time and discussion. But even if you have already been married for years, it is not too late: a prenuptial agreement can be concluded at any time. Incidentally, prenuptial agreements can even apply retroactively to the date of the marriage, provided this is agreed. However, there are limits to this retroactive effect: Third-party rights that have already been established (e.g. creditors) must not be impaired as a result.
A marriage contract is not a final, static document. It is advisable to review it at intervals of a few years and amend it if necessary, especially if life circumstances change (e.g. birth of children, start of self-employment, purchase of a property, major inheritance). Legal changes such as the revision of inheritance law can also be an occasion to update existing contracts.
Common mistakes and uncertainties surrounding prenuptial agreements
"We love each other - we don't need that!" - One of the most common misconceptions is that a prenuptial agreement is only for distrustful or unromantic couples. In reality, however, it stands for foresight and provision, similar to an insurance policy that you hope you will never need. It creates clear rules in the event of an emergency, provides financial security for both partners and even promotes long-term trust through open dialogue about money.
"A prenuptial agreement is only important in the event of divorce." In Switzerland, the main purpose of a marriage contract is to make arrangements in the event of death. Without it, the statutory participation in acquired property applies, with corresponding consequences for the division of the estate. A marriage contract can provide the surviving partner with considerable advantages and secure their financial existence. Points of contention can also be defused in the event of divorce, for example by opting for separation of property. However, aspects such as maintenance or pension fund equalisation remain subject to judicial review. The main benefit therefore lies in the provision for inheritance. A prenuptial agreement is therefore not only a divorce instrument, but also an instrument for organising the entire marriage and the time after it.
"Marriage contracts are only needed by the rich." Wrong. Medium-sized assets in particular, such as a jointly financed home, a small business or pension savings, can be put to the test without a prenuptial agreement. The divorce rate in Switzerland is around 40 %, and a death can also affect any family. Example: Mr and Mrs Müller own a paid-off detached house. Without a marriage contract, the children are entitled to their compulsory portion, which can place a heavy financial burden on the widower. With a contract, it could be agreed that the house remains entirely with the surviving partner and the children are compensated in some other way. A prenuptial agreement therefore also offers normal earners planning security and is not a luxury item for the rich, but a practical tool for everyone.
"A marriage contract always penalises one of us." Many people fear that they will be disadvantaged by a prenuptial agreement. However, it can be organised fairly and to the benefit of both parties. The aim is individual fairness: common property should be distributed fairly, while personal property should remain protected. Both partners must agree, and the notary ensures a balance. Unclear or onerous special clauses should be avoided and the focus should be on the essentials. In this way, the marriage contract creates clear conditions, prevents disputes and gives both partners financial security.
Early planning brings security
A prenuptial agreement may sound like dry legalese at first, but it is actually a valuable life planning tool. By consciously organising your matrimonial property regime, you retain control over the division of your assets and protect your family from unexpected hardship. Whether you are a newlywed or an older couple, a wealth accumulator or a patchwork family, a customised agreement provides clarity where the law only offers standard solutions. This allows you to concentrate on the essentials: harmonious coexistence without having to worry about financial uncertainties.
In practice, the marriage contract is often combined with an inheritance contract or will in order to achieve optimal solutions in terms of both matrimonial property law and inheritance law.