SWITZERLAND Trends and Developments Contributed by: Giovanna Bonafede, Manuela Brenneis-Hobi, Prof Dr Annette Spycher and Vanessa Thompson, Kellerhals Carrard
It is not uncommon for cohabiting partners to pur ‑ chase property together, especially real estate. In such cases, it is crucial to document and reflect the respec ‑ tive financial contributions of both partners accurately, particularly in the property records. Failure to do so may lead to disputes in the event of separation, espe ‑ cially with regard to determining whether the financial contributions made by one partner constituted a gift or a loan. This distinction may also have significant tax consequences for both parties. Courts in Switzer ‑ land are now handling a growing number of disputes between cohabiting partners, particularly over jointly owned property and financial contributions. These disputes highlight the importance of clear agreements between cohabiting partners, such as cohabitation contracts or prenuptial agreements, to address issues like property ownership, financial contributions, and inheritance rights upfront. Maintenance of Minor Children of Unmarried Parents In general According to Swiss law, parents – whether married or unmarried – must provide for the maintenance of their children, which consists of care, education, and finan ‑ cial contributions. From a financial perspective, both parents must contribute to the child’s maintenance in proportion to their respective financial capacity. The legislator has established that there is no dif ‑ ference in the maintenance of children of married or unmarried parents. Any child has the right to receive an education and to enjoy a standard of living corre ‑ sponding to the financial circumstances of their par ‑ ents, even after the parents stop living together. As a general rule, all children entitled to maintenance must be treated equally, proportionally to their objec ‑ tive needs. However, there are differences in determining mainte ‑ nance for a minor child versus an adult child. As long as the parents live together, it is not necessary to specify their financial contributions. This becomes essential, however, when the parents cease cohabita ‑ tion.
Parents may reach an agreement that includes the arrangements for ensuring the child’s care, education and financial maintenance. For agreements for minor children to be valid for minor children, they must be approved by an administrative authority or a judge. The child’s maintenance comprises in-kind contri ‑ butions (care and education) and financial contribu ‑ tions. Financial contributions include both direct costs incurred on behalf of the child (school fees, housing costs, health insurance premiums, third-party care, etc) and indirect costs, ie, those arising from the other parent’s care of the child. The parent who does not provide care and education for the child must, in principle, assume the financial maintenance. It is therefore essential to determine which parent ensures care and education for the child and, if applicable, to what extent. Calculation In general, the maintenance contribution for a minor child is determined not solely on their needs but also on the parents’ social situation, standard of living, and financial capacity. First, child maintenance includes food, housing, hygiene, and health needs. Additional costs related to care, education, and training must also be taken into account. Swiss case law has established that the calculation should follow the so-called two-phase method, as set out below. • Determine the child’s primary needs (including housing costs, health insurance premiums and third-party care expenses). • Add the amount remaining from the debtor parent’s income after deducting their own and the child’s expenses for basic needs, which can be used to finance the child’s standard of living (the so-called surplus). According to established case law, the primary needs of a minor child are defined by the minimum subsist ‑
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