Saying “I do” across borders
Switzerland is no stranger to international couples – today, more than a quarter of Swiss residents are foreign nationals. Of these, the vast majority arrive during adulthood, with many having already committed to their partners some time before taking up residency. Often overlooked, there are some important questions which should always be considered when “I do” is said across borders.
Is a marriage celebrated abroad recognised under Swiss law? Why does it matter?
A marriage validly celebrated outside of Switzerland is in principle recognised in Switzerland. This applies to both heterosexual and same-sex marriages - since 1 July 2022 (when the Swiss law on same-sex marriages entered into force) same-sex marriages concluded abroad are recognised as marriages in Switzerland and not as civil partnerships.
On the contrary, a marriage celebrated abroad is not recognised in Switzerland if it is clear that the spouses do not want to establish a ‘marital community’, but rather are only marrying to circumvent Swiss laws on the admission and rights of residence of foreigners.
There are, of course, exceptions. For example, religious marriages are usually not recognised in Switzerland; although the marriage may be legally binding abroad, the spouses are considered as single in Switzerland.
Why does this matter? If a marriage is not recognised as a marriage for Swiss law purposes, there may be an impact on both tax and legal status and family matters more generally. For example, spouses may not be treated as heirs for succession purposes, and they may not be able to benefit from Swiss matrimonial law protections.
Can foreigners marry in Switzerland?
The Swiss authorities are competent to officiate a marriage where one of the individuals is domiciled (using the Swiss sense of the word, akin to residence) in Switzerland or has Swiss nationality. Swiss law will apply to the marriage. If one of the individuals is a foreign national, they will need to present to the authorities documents concerning their nationality and their residence permit.
What about matrimonial property regimes in Switzerland?
A married couple adopts a matrimonial property regime upon marriage. By entering into a marriage, spouses are not only committing personally to one another, but also economically. The matrimonial property regime is an economic system which applies to the spouses both during the marriage and on divorce or death.
The regime of ‘participation in acquired property’ automatically applies to all married couples (heterosexual or same-sex) in Switzerland. This means that common assets, i.e. all assets accumulated during the marriage that are not personal property are divided between the spouses in the event of divorce or death. Personal assets, i.e. those inherited or accumulated before the marriage, are not divided and are kept as separate property.
It is possible for a couple to elect for another Swiss matrimonial regime to apply by preparing a pre-nuptial or post-nuptial agreement, signed before a Swiss notary public. The two other matrimonial regimes in Switzerland are the regime of ‘separation of property’ and the regime of ‘community of property’.
Why does this matter? The choice of matrimonial regime directly impacts the distribution and inheritance of assets in both cases of divorce or death. It is therefore important to understand the financial consequences of each regime and ensure this is in alignment with both spouses’ wishes. It is equally important to check that the matrimonial regime is also recognised in the country/countries of the nationality of the spouses, and also in any other jurisdiction where key assets are located. The best approach is uniformity in all places concerned, however as some countries (such as the UK, for example) do not have matrimonial property regimes as part of their domestic law, it is important to seek specific advice.
Are there any specific Swiss tax consequences of marriage in Switzerland?
Married couples are jointly taxed in Switzerland, while non-married couples (even those living together and who have children together) are taxed separately.
For married couples, both their incomes are accumulated to calculate their taxes. As Switzerland has progressive taxation of revenues, this can in certain circumstances create vast inequalities. Legal reforms are in discussion in this respect, but it will take some time before we see any change in the Swiss tax rules, if at all.
Typically, spouses can make gifts to one another (and to direct descendants) without triggering Swiss gift tax consequences. However, as gift tax is levied on a cantonal basis, this should be confirmed on a case-by-case basis.
On moving to Switzerland it is always recommended to seek specific advice to determine the effects of a marriage, or indeed a marriage contract, conducted or prepared abroad. Our family and private client teams in Switzerland are excellently placed to assist. For further information, please contact Joanna Metaxas and Sophie Hart.