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Marriage for All - Why is a Conversion sensible? Part 1

Updated: Mar 28

Since July 1, 2022, marriage has become available to same-sex couples, replacing the previously used civil status of registered partnership. Existing registered partnerships remain valid and can be converted into marriage. However, it is no longer possible to enter into a registered partnership.


Even though the registered partnership is based on the model of marriage, there are some significant differences. Why it is advisable to engage with this topic will be clarified in this two-part blog series.


Ein Altarbogen in der Natur


In Brief

In the two blog posts, we will focus on the following key aspects:


  • Part 1: Marital Property Regimes: What is a marital property regime? What are the differences, and what are the consequences of converting to the marital status?

  • Part 2: Simplified Naturalization: What types of naturalization exist, and what is the connection between marital status and the naturalization process?

 

Marital Property Regimes


Types

In Switzerland, there are three different marital property regimes:

  • Acquired Property Regime

  • Separation of Property

  • Community of Property


Acquired Property Regime

If the spouses have not made any specific agreements, such as entering into a marriage contract, the acquired property regime, also known as the "ordinary property regime," automatically applies when they marry.

 

This property regime divides assets into four categories: the acquired property and the separate property of each spouse.

 

The acquired property includes assets that a spouse has acquired during the marriage for valuable consideration, such as income, benefits from social insurance, or proceeds from separate property.

 

Separate property, on the other hand, includes assets that a spouse brought into the marriage or received without charge during the marriage, as well as assets exclusively for personal use and replacements for separate property and claims for compensation.

 

Within legal limits, each spouse can manage, use, and dispose of their separate property and acquired property. This means that each spouse is liable for their debts with their entire estate.

 

In the event of the dissolution of the acquired property regime due to divorce, annulment of the marriage, choosing another property regime, or in case of death, each spouse first reclaims their own assets held by the other spouse. In a second step, mutual debts are settled. In the final step, an equalization calculation is performed. The proposal consists of what remains of the total value of the acquired property, including added assets and replacement claims, after deducting the debts on it. Each spouse or their heirs is entitled to half of the other's proposal. Claims are offset.


Separation of Property

Within legal limits, each spouse manages and uses their own property and has full control over it. This means that there is no common property.

 

Upon dissolution of the separation of property regime, there is no division of assets because there was never a common property mass.


Community of Property

The community of property regime includes the joint property and separate property of each spouse.

 

The general community of property combines the assets and income of the spouses into a single joint property, except for items that are considered separate property by law. These include items intended exclusively for personal use and claims for compensation.

 

The joint property belongs to both spouses undivided, and neither spouse can dispose of their share of the joint property without the other's consent. This also means that without the other's consent, no one can decline an inheritance that would fall into the joint property or accept an over-indebted inheritance.

 

If the community of property is dissolved due to the death of one spouse or by agreement to a different property regime, each spouse or their heirs is entitled to half of the joint property.

 

In the case of divorce, separation, annulment of the marriage, or the legal or judicial separation of property, each spouse reclaims from the joint property what would be their separate property under the acquired property regime. The remaining joint property is divided equally between the spouses.

 

Requirements for Conversion

To convert a registered partnership into a marriage, the following conditions must be met cumulatively:

  • The registered partnership was registered before July 1, 2022.

  • The registered partnership has not been dissolved.

 

Differences Between Marriage and Registered Partnership

In the case of a registered partnership, a choice of marital property regime was not possible, as separation of property was the default, and other preferences could only be documented through a contract.

 

In the case of marriage, on the other hand, the three marital property regimes can be chosen. If a couple wishes to change their marital status from a registered partnership to marriage, they have the option to switch from the separation of property regime to the acquired property regime. It is possible to change the marital property regime during the marriage. However, this change involves some time-consuming procedures, so it is advisable to make the right choice from the beginning.

 

Which of the three marital property regimes is suitable for a particular marriage is an individual question and cannot be answered here. We believe it is important to address this issue in the partnership in a timely manner and consult an expert if necessary.

 

Source: Swiss Civil Code (ZGB)


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