SWITZERLAND Trends and Developments Contributed by: Giovanna Bonafede, Manuela Brenneis-Hobi, Prof Dr Annette Spycher and Vanessa Thompson, Kellerhals Carrard
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Unmarried Couples in Switzerland: A Few Important Legal Aspects of Cohabitation Introduction: legal framework Under Swiss law, the only alternative to marriage available to couples is (“simple”) cohabitation. Since 1 July 2022, same-sex couples likewise only have the choice between marriage and cohabitation. So-called registered partnerships, which served as a substitute for marriage before that date, remain in force, unless the partners decide to convert them into a marriage. Cohabitation does not constitute a legally regulated status under Swiss law. The government has so far rejected the idea to establish cohabitation as a legal institution, in particular referring to the freedom to choose one’s form of living and the principles of pri ‑ vate autonomy and freedom of contract. At the federal level, parliamentary initiatives aiming at establishing an alternative legal institution for couples are pending. They are based on the French Pacte Civil de Solidarité (PACS), which is designed to occupy an intermediate position between marriage and cohabi ‑ tation. Such a model would be less comprehensive than marriage, while providing a more structured and legally binding framework than cohabitation. In 2022, the Federal Council published a report intended to inform and to serve as a basis for politi ‑ cal debate regarding the possible introduction of a PACS-like model in Switzerland. To date, no concrete legislative proposals have been put forward.
Legal Classification and Definition of Cohabitation in Case Law As cohabitation is not regulated as an independent institution, the courts apply different provisions on a case-by-case basis, depending on the legal issue at hand. The Swiss Federal Supreme Court defines cohabita ‑ tion as: “(…) a long-term, if not permanent, compre ‑ hensive partnership between two people that is fun ‑ damentally exclusive in nature and has both a mental and emotional as well as a physical and economic component, and is also referred to as a living, dining, and sleeping partnership (...).” The Court emphasises that these components do not all carry the same weight. The criteria must be assessed on a case-by-case basis. Consequently, Swiss case law does not provide a uniform defini ‑ tion of cohabitation; rather, the applicable criteria vary depending on the area of law, particularly with regard to the required duration of the relationship. As a result, cohabiting partners do not benefit from the same level of legal protection as married couples. The legislator has, however, modified certain provisions to prevent unequal treatment of children based on the civil status of their parents. The unequal treatment of married and unmarried part ‑ ners is particularly apparent in fundamental areas of law, such as tenancy law. In the case of married cou ‑ ples, the termination of the lease for the family home requires the consent of both spouses, irrespective of whether both are formally listed as tenants in the lease
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