Newsflashes

"Marriage for all"– is action required for existing registered partnerships?

10.05.2022

In September 2021, the Swiss public, with a vast majority, voted in favor of the "marriage for all". What's new?

As of 1 July 2022

  • same-sex couples are able to enter into civil marriage in Switzerland;
  • new registered partnerships can no longer be concluded;
  • existing registered partnerships can be converted into civil marriages;
  • certain existing registered partnerships (namely same-sex marriages previously concluded abroad) are automatically converted into civil marriages in Switzerland.

The main difference between marriage and a registered partnership is the legal property regime governing assets acquired during the marriage or registered partnership ("Güterstand"): Assets acquired in the course of a registered partnership principally remain separate ("Separation of Property" / "Gütertrennung"), whereas in a marriage, participation in each other's property acquired during the marriage is assumed ("Participation in Acquired Property" / "Errungenschaftsbeteiligung"). The conversion of a registered partnership into marriage therefore carries proprietary consequences. Is action required? Yes, if the couple wishes to uphold its current legal property regime for its assets in the future marriage.

1. Conversion of a registered partnership into marriage

As of 1 July 2022, registered partners who have not previously entered into marriage abroad, can at any time convert their partnership into a marriage by means of a common declaration at the civil registry office. Should the partners not take such action, the registered partnership continues to exist and the Separation of Property ("Gütertrennung") remains applicable (or the contractually agreed upon regime, respectively).
If the partnership is converted into a marriage, the statutory marital property regime of Participation in Acquired Property ("Errungenschaftsbeteiligung") applies, starting from the moment of conversion. Property acquired after the conversion will therefore principally be divided evenly in case of divorce or death. Couples who intend to convert their registered partnership into marriage and wish to maintain their current property regime, are thus recommended to conclude a prenuptial agreement or property contract. Already existing contracts of such kind will remain valid after the conversion.

2. Automatic conversion of pre-existing marriages concluded abroad

Marriages concluded abroad will be recognized as marriage (and not simply as registered partnership) in Switzerland as of 1 July 2022 and will thus be treated as marriage from a Swiss law perspective. The recognition as marriage ensues automatically. Upon request of the spouses, the civil registry entry can be amended accordingly. Such amendment is however not necessary for the recognition as marriage.
It is important to note that in this constellation, the marital property of Participation of Acquired Property ("Errungenschaftsbeteiligung") will retroactively apply, starting from the date of marriage abroad. This means that, in principle, all assets acquired from the date of the marriage abroad will be divided evenly in case of divorce or death.
Couples who are due to be affected by this retroactive application and wish to maintain their current property regime, would need to conclude a prenuptial agreement. Due to the retroactive application of these rules, affected couples are recommended to timely contemplate these questions before 1 July 2022.

 

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