2 Is there a statutory matrimonial property regime and if so, what does it provide?
2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?
The statutory matrimonial property regime is the community of property, which takes effect upon conclusion of the marriage. It includes assets acquired by the spouses both individually and jointly during the regime (community property). Assets excluded from the community property belong to the personal property of each spouse (Art. 31 para. 1 of the Family and Guardianship Code).
Community property includes, in particular:
- 1) remuneration received for work and income from other profit-oriented activities;
- 2) income from the community property as well as from each of the spouses’ personal property;
- 3) financial benefits from an open or employee pension fund (Art. 31 para. 2 of the Family and Guardianship Code).
Household appliances used by both spouses also form part of the community property if they were acquired by inheritance, bequest or donation, unless the testator or donor stipulated otherwise (Art. 34 of the Family and Guardianship Code).
The personal property of each spouse includes (but is not limited to) the following:
- 1) assets acquired before the community of property regime took effect, assets acquired by inheritance, bequest or donation unless the testator or donor stipulated otherwise, assets which exclusively serve one spouse’s personal needs, assets obtained as a reward for a spouse’s personal achievements, and assets acquired in exchange for personal assets unless particular provisions provide otherwise;
- 2) property rights resulting from a joint ownership of property subject to separate regulations (e.g. joint ownership in a civil law partnership or commercial partnership);
- 3) inalienable rights to which only one person may be entitled;
- 4) assets received as damages for bodily injury or a health disorder or as a compensation for harm suffered. This does not, however, include disability benefits received due to the partial or total loss of earning ability of a spouse or due to his/her increased needs or decreased prospects for future;
- 5) claims for remuneration from work or for income from other profit-oriented activities;
- 6) copyrights and related rights, intellectual property rights or other rights of a creator (Art. 33 of the Family and Guardianship Code).
2.2. Are there legal assumptions concerning the attribution of property?
Whether a specific asset is attributed to community or personal property depends on to which of the abovementioned categories it belongs, taking into account the way in which it was acquired (See 2.1).
2.3. Should the spouses establish an inventory of assets? If so, when and how?
This is not required. However, an inventory can always be drawn up for evidence purposes.
2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?
2.5. Are any legal transactions made by one spouse also binding on the other?
Either spouse may individually possess and use the assets which form part of the community property (Art. 341 of the Family and Guardianship Code). During the statutory community of property regime, neither spouse may request the division of the community property. In addition to this, neither spouse may dispose of or undertake to dispose of a share of the community property or of a particular asset thereof that would fall to him/her when the statutory regime ceased (Art. 35 of the Family and Guardianship Code). Spouses are obliged to cooperate in the management of their community property (Art. 36 para. 1 of the Family and Guardianship Code). Either spouse may manage the property alone, but such management excludes the activities described below (i.e. activities requiring the consent of the other spouse). A spouse may object to the management of community property by the other spouse, except for acts concerning everyday matters, acts intended to satisfy the everyday needs of the family, or an act performed as part of a profit-oriented activity (Art. 361 para. 1 and 2 of the Family and Guardianship Code).
If requested by one of the spouses, the court may, for an important reason, deprive the other spouse of the right to manage the community property on his/her own. The court may also decide that its authorization will be required instead of the spouse's consent for acts stipulated in Art. 37 para. 1 of the Family and Guardianship Code.
The consent of the other spouse is required for:
- 1) any legal transaction concerning the disposal, encumbrance or purchase of immovable property or of the right of perpetual usufruct or any other legal transaction concerning the use and exploitation of the immovable property;
- 2) any legal transaction concerning the disposal, encumbrance or purchase of a right in rem on a building or premises;
- 3) any legal transaction concerning the disposal, encumbrance, purchase or lease of an agricultural farm or an enterprise;
- 4) donations made from the community property, except for customarily accepted donations (Art. 37 para. 1 of the Family and Guardianship Code).
Any agreement entered into by one spouse without the required consent of the other spouse is null and void, unless it is subsequently approved by the other spouse. A unilateral legal act by one spouse without the required consent of the other is also null and void (Art. 37 para. 2-4 of the Family and Guardianship Code).
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
Both spouses are jointly and severally liable for debts incurred by either of them in order to meet the everyday needs of the family (Art. 30 of the Family and Guardianship Code). If either of the spouses incurs a debt with the consent of the other spouse, the creditor may demand that the community property also be used to settle the debt. If either of the spouses incurs a debt without the consent of the other spouse, or if the debt does not arise from a legal transaction, or if the debt was incurred before the community of property regime took effect between the spouses, or if the debt relates to personal assets, the creditor may only demand that the debt be settled from the debtor's personal property or from specific assets belonging to the community property (e.g. remuneration for work) (Art. 41-42 of the Family and Guardianship Code).
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