Prenuptial Agreements in Switzerland

Duties of the Notary

The notary is required to:

• Ensure the contract is based on the parties’ free will.
  
  
• Verify the contract’s compliance with Swiss law.
  
  
• Inform the parties of their current legal status and the effects of the marital agreement.
  
  
• Ensure the parties understand the content of the agreement.
  
  
• Confirm that the terms reflect the true intentions of the parties.
  
  

Even if the notary fails to fulfill these duties, the agreement remains valid. However, the notary may be liable for damages. The registration of marital agreements was abolished in 1988.

Effective Date and Modification

Prenuptial agreements take effect upon the solemnization of the marriage (Art. 182, Swiss Civil Code). Spouses may enter into a marital agreement, or amend or annul a prenuptial agreement, at any time during the marriage.

Disclosure and Grounds for Invalidity

Full disclosure of each spouse’s assets and debts is not required. However, general contract law applies. A marital agreement may be invalidated due to:

• Fundamental mistake
  
  
• Fraudulent misrepresentation
  
  
• Duress
  
  
• Abuse of rights
  
  

(Articles 23 ff. and 28 ff. Swiss Code of Obligations; Article 2(2) Swiss Civil Code)

Judicial Review and Nature of the Agreement

A marital agreement that only addresses the matrimonial property regime and not divorce-related matters is not subject to judicial review for fairness. However, if the agreement is intended to facilitate a divorce, it is subject to judicial control (Art. 140, Swiss Civil Code).

Choice and Modification of Property Regime

Spouses may choose, change, or modify their property regime within the boundaries set by Swiss law (Art. 182(2), Swiss Civil Code). They may only select among the statutory regimes and may modify them only in ways and to the extent specifically authorized. Spouses may not create their own custom regime.

They may, however, regulate certain property-related issues by means of a simple written contract, though this is not considered a formal marriage contract.

Participation in Acquisitions Regime

Under the participation in acquisitions regime:

• Spouses may deviate from the rules on sharing increased asset value if one spouse invested in the other’s property (Art. 206(3)).
  
  
• They may designate business assets as separate property.
  
  
• They may assign income generated from separate property to that same category (Art. 199).
  
  

Community of Property Regime

Under the community of property regime, spouses may modify which assets are included in the common property (Art. 223, Swiss Civil Code).