Frequently asked questions about marital agreements
Frequently asked questions about marital agreements
When is a marital agreement useful?
It can adapt the matrimonial property regime and permissible individual provisions to your needs. Business assets, inheritances and succession may be particular reasons for an agreement. Not all consequences of divorce can be determined conclusively through it.
Can a marital agreement be concluded during marriage?
Yes, before or during marriage. Public notarisation is required. The effects on existing assets and any matrimonial property settlement should be clarified beforehand.
Which consequences of divorce can be agreed in advance?
Matrimonial property provisions must be distinguished from a prior divorce agreement. Maintenance arrangements may require court review and approval. Children’s matters are assessed according to their best interests and are not entirely at the parties’ free disposal.
Which matrimonial property regime applies without a marital agreement?
The default is participation in acquisitions. Separate property and acquired property are distinguished; on dissolution, statutory participation claims are calculated. Not every asset is simply divided equally.
Complex questions from practice
How are increases in the value of a business brought into the marriage treated?
Separate property, investment from acquired property and reasonable remuneration for work must be distinguished. Valuation and financing evidence are decisive. Contractual arrangements must respect the permissible limits.
An overview of the origin of funds and subsequent investments assists classification under matrimonial property law. Business value, work performed and private financing contributions should not be treated indiscriminately as equivalent. Acquisition documents, accounts and remuneration agreements help assess the different claims and prepare clear marital arrangements.
Can a marital agreement protect the surviving spouse differently in relation to common and non-common children?
Benefits under matrimonial property law and compulsory inheritance shares interact. Descendants who are not common to both spouses may have special protection rights. A will or inheritance agreement and pension beneficiary arrangements should be coordinated.
Start with the family structure and existing marital and inheritance agreements. This allows assessment of the benefits permitted under matrimonial property law and their effect on inheritance claims. Particularly in blended families, practical provision for the surviving partner through rights of residence and available funds should also be coordinated.
Does an earlier maintenance agreement remain binding after major changes?
Court review, current circumstances and the nature of the agreement are relevant. An earlier waiver is not automatically conclusive. Child maintenance and spousal maintenance must be assessed separately.
Compare the original basis of the agreement with current circumstances, such as income, care or health limitations. It also matters whether this is a private agreement or a court-approved arrangement. Any variation should be addressed through the appropriate procedure; unilaterally stopping agreed payments may create additional risks.
Which matrimonial property law applies to an international couple?
Domiciles, nationalities and any permissible choice of law must be examined. Jurisdiction and recognition abroad may raise further questions. Swiss notarisation alone does not resolve all international consequences.
Prepare an overview of domiciles, nationalities and existing choice-of-law clauses. The location of significant assets may also matter for subsequent implementation. Choice of law and court jurisdiction are different questions. A cross-border marital agreement should therefore be coordinated with its possible recognition abroad.