SWITZERLAND Law and Practice Contributed by: Olivier Sigg and Quentin Thorens, Walder Wyss
own the acquired property, which includes the pro- ceeds from the spouses’ employment, the benefits received from staff welfare schemes, social securi- ty and social welfare institutions, the compensation for inability to work, the income derived from the spouses’ own property and the property acquired to replace acquired property. • The community of property regime: Under the regime of community of property, all assets are presumed to belong to the community (including earned, gifted or inherited assets), with the excep- tion of personal belongings. Each spouse owns all the community assets jointly with the other spouse and participates in half of the community upon dis- solution of the regime (death or divorce). Individual property may, however, be created by prenuptial/ postnuptial agreement, by provisions made by third parties or by law. The adoption of the regime of community of property requires the signing of a prenuptial/postnuptial agreement before a public notary in the form of a public deed. • The separation of property regime: Under the regime of separation of property, each spouse administers their own assets and individually enjoys the related benefits, meaning that there is no joint property. More precisely, there is no acquired property or community that gives rise to a monetary claim upon dissolution of the regime (death or divorce). Such a regime may either be agreed upon in a prenuptial/postnuptial agreement signed before a public notary in the form of a pub- lic deed or be ordered by the judge, in particular when the spouses separate but do not divorce. The marital property regime is dissolved upon the death of a spouse in order to determine the surviving spouse’s share before applying succession rules. As this sequencing can substantially affect the estate’s value, in some cases, reorganisation of marital proper- ty can increase or decrease the spouse’s entitlement. During life, the administration and the transfer of mari- tal property also depends on the applicable regime and on the qualification of the asset. In the ordinary regime, each spouse administers and enjoys the benefits of their individual property and has power of disposal over it. However, if an asset is in the co- ownership of both spouses, neither spouse may dis-
pose of their share in it without the other’s consent, unless otherwise agreed. In the community of property regime, each spouse may, in the limits of everyday housekeeping, incur commitments on behalf of the marital union and dispose of common property. Out- side the limits of everyday housekeeping, the spouses may incur commitments on behalf of the common property and dispose thereof only jointly or individu- ally with the other’s consent. Finally, in the separa- tion of property regime, each spouse may in general administer and enjoy the benefits of their own prop- erty and has power of disposal over it. Just as forced heirs are entitled to bring an abatement action against inter vivos gifts infringing their com- pulsory shares (see 3.2 Forced Heirship ), the surviv- ing spouse, upon liquidation of the marital property regime, may request the reconstitution of assets that were disposed of in breach of the rules governing the administration of the marital property or otherwise in violation of the applicable marital property provisions. 4.2 Prenuptial and Postnuptial Agreements Both prenuptial and postnuptial agreements are per- mitted and recognised in Switzerland. Such agree- ments must be executed in the form of a public deed before a notary, either prior to the celebration of the marriage or after the marriage, in which case they may have retroactive effect as from the date of the mar- riage. It is also possible to conclude a prenuptial or postnuptial agreement before taking up residence in Switzerland. Certain matters, however, cannot be validly pre- determined by marital agreement. In particular, the grounds or preconditions for divorce cannot be fixed in advance, and provisions relating to post-divorce maintenance or arrangements concerning children are not binding without court approval in the course of divorce proceedings. 5. Tax Treatment of Lifetime Transfers and Testamentary Dispositions 5.1 Lifetime Transfers Lifetime transfers are generally deemed as income or gifts under Swiss tax law. Income is governed by
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