3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
By concluding a marriage contract, the spouses may stipulate a separation or a community of property (Art. 116 CC).
If the spouses stipulate a community of property, the property owned by the spouses before the marriage, as well as the property they acquire during the marriage is, in principle, combined into one joint indivisible mass. This community property, however, shall not include the property that the spouses have stipulated as being each spouse’s separate property in the marriage contract.
The spouses agree who shall administer the community property (wife, husband or both together). If only one spouse administers the community property, then he/she may, subject to the restrictions provided in the law, use and dispose of it in his/her own name and is obliged to cover family and joint household expenses (Art. 124 CC). The other spouse’s consent is necessary in cases of alienation, mortgaging or encumbrance with rights in rem of immovable community property (Art. 128 CC). It is also necessary in the case of donation of movable community property if such a donation exceeds the amount of an ordinary, small gift (Art. 129 CC). Each spouse disposes of his/her separate property independently (Art. 125 para. 2 CC).
In the case of community of property, a spouse is liable for the other spouse’s debts incurred on behalf of the family and the joint household also with his/her separate property, but only where the community property and the separate property of the spouse who has incurred the debt is not sufficient (Art. 130 CC).
If a separation of property is stipulated, each spouse not only retains the property that he/she owned before the marriage, but can also acquire property and use, administer and dispose of it independently of the other spouse during the marriage (Art. 117 CC). A spouse may not use, administer or dispose of the property of the other spouse without the latter’s consent (Art. 118 para. 1 CC). However, the spouses can agree that the property of one spouse shall be administered by the other spouse. In this case, the administering spouse is liable for losses caused through gross negligence (Art. 119 CC).
Under the separation of property regime, each spouse is liable for his/her own debts with his/her own property (Art. 121 CC).
3.2. What are the formal requirements and who should I contact?
Marriage contracts are signed before a civil law notary in the presence of both spouses or, if one of them is under age, in the presence of his/her legal representative (Art. 115 CC).
3.3. When may the contract be concluded and when does it come into effect?
A marriage contract may be concluded both during the marriage, as well as before entering into marriage, in which case it is registered only after the conclusion of marriage (Art. 114 CC). As between the spouses, the contract comes into force at the moment of its signing. In relation to third parties, the marriage contract has to be registered to be opposable to them.
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The spouses can modify the existing contract on the same conditions as were in effect when they signed the contract.
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