Expats in Switzerland - Join the crowd
(Part 2)
With asset and succession planning under the belt, it is no wonder that certain family law issues are sometimes forgotten about, or simply not known. The second part of this note seeks to address a couple of common areas for consideration.
Marital planning – maintaining the status quo?
The first question which should be raised is whether your marriage is recognised under Swiss law. For most this is a non-issue, but, for example, same-sex marriages are recognised in Switzerland as registered partnerships, and religious marriages are sometimes only recognised if there has been a corresponding civil ceremony. If your marriage is not recognised as a marriage for Swiss law purposes, there could be a risk that you and your partner's legal and tax status is not as you had anticipated.
If you put in place a pre-nuptial agreement or marriage contract before marriage, it is important to determine the effect of such an agreement in Switzerland, should you need to rely on it. Pre-nuptial agreements which are entered into abroad are generally treated as binding by the Swiss courts in determining the applicable matrimonial property regime, provided they are valid in the country in which they were made and do not contravene Swiss public policy.
The default regime for married couples under Swiss law (but not for same-sex couples) is the regime of 'participation in acquisitions'. Under this regime, a distinction is made between individual property (pre-marital assets and assets received by way of gifts or inheritance during the marriage) and so-called acquired property of a spouse (income from work and earnings derived from individual property during marriage). In the case of dissolution of the marital property regime as a result of the death of a spouse or divorce, each spouse has a monetary claim in the amount of half of the acquired property of the other spouse. The spouses' individual property is not subject to division.
The spouses or registered partners may opt out of the Swiss default regime of 'participation in acquisitions' by choosing the 'community of property' or 'separation of property' regime by means of a prenuptial or postnuptial agreement. It is also possible to tailor the agreement to a couple's specific needs within certain statutory limits.
Planning for children – little ones, big considerations
Many expats move to Switzerland with their family, or start a family whilst resident.
A first and vital consideration for some is ensuring that your existing legal responsibility and/or legal parenthood for your children is recognised in Switzerland, or indeed that you obtain it in Switzerland if you child is born whilst you are there. For the majority of families this is no issue, as birth mothers and married fathers are naturally granted legal responsibility for their children under Swiss law. However, this is not necessarily the case for those who have started a family through fertility assistance, surrogacy arrangements or adoption. In these instances, parental responsibility will usually not initially lie with the parents, and so arrangements will need to be put in place to deal with this. Switzerland is a signatory to a number of international conventions which in part aim to standardise the recognition of orders made abroad (for example, parental responsibility) so it is important that planning is put in place to ensure this applies to your circumstances.
At the same time as ensuring your legal responsibility for your children, it is also important to check that your existing arrangements for the care of your children after your death are practical, feasible and enforceable in Switzerland. The appointment of guardians in your Will is key, and extra thought needs to go into matters such as whether your children will remain in Switzerland and so on. Whether or not your child is born in Switzerland, there will likely be immigration issues to consider if your appointed guardians are elsewhere.
We have set out here merely a small collection of topics to think about. Once the key cornerstones are checked off, it is not hard to switch off and enjoy settling into life in Switzerland.
This article was written by Sophie Hart. For more information please contact Sophie via sophie.hart@crsblaw.com or on +41 (0)22 591 1754.
