Pension capital

Divorce and marriage contract: how assets are divided

What happens in a divorce with and without a marriage contract? Find out more about the division of assets under different matrimonial property regimes and how a divorce affects pension assets.

by UBS Insights 17 Feb 2025 3 min read

Content:

In the absence of a marriage contract, the marital property regime of community of acquired property applies to married couples.
In the event of divorce you receive your own property and half of the acquired property.
In pillars 1 and 2, half of the pension assets saved during the marriage must be divided, unlike in pillar 3.
With a marriage contract you can modify the matrimonial property regime or switch to community of acquired property or separation of property.
To the conclusion

Senior gentleman working with young woman at workbench.

What happens if there is no marriage contract?

In the absence of a marriage contract, married couples are subject to the marital property regime of community of acquired property. This regime distinguishes between acquired property and each spouse’s personal property and regulates what belongs to each estate.

Some of these assets were generated during the marriage, while others were brought into the marriage by the spouses. The former is “acquired property,” the latter “personal property.” Personal property also includes items that are exclusively for personal use, such as jewelry and clothing. Gifts and inheritances made during the marriage are also personal property.

The assets that a spouse acquires during the marriage count as acquired property. The following are included: salaries, income from personal property (such as income from securities), social security benefits. Pension assets saved during the marriage also count as acquired property.

Division of assets

In the event of divorce, each person is entitled to their own property.

The situation is different with regard to acquired property: the assets acquired during the marriage are divided equally in the event of a divorce. This happens regardless of how much both persons have contributed.

Division of pension assets

Pillar 1: All income of the spouses on the individual OASI account that was earned during the marriage is divided equally between them after a divorce. The year of marriage and the year of divorce are excluded from the calculation. This splitting should be applied for at the OASI compensation office, otherwise it will only be carried out automatically – possibly many years later – when the pension is calculated.
Pillar 2: Pension fund assets accrued during the marriage are also divided equally after divorce. The pension fund at which the credit balance has increased the most either reimburses the difference to the partner’s fund or the share is transferred to a vested benefits account. Assets that already existed before the marriage, including earnings, remain untouched. Voluntary buy-ins that were demonstrably financed from personal assets are also not divided. Advance withdrawals for home ownership are included in the pension equalization, but not advance withdrawals for setting up a company. Since 2017, the accumulated pension capital can be divided differently in order to avoid certain disadvantages, for example if one partner has taken on care responsibilities during the marriage or if one person is already retired or disabled at the time of the divorce. Because pension equalization in pillar 2 can be complicated, it is better to consult a specialist.
Pillar 3: Both pillar 3a and pillar 3b pension assets are deemed acquired property by default and are therefore divided equally in the event of a divorce. However, you can override this rule if you agree on the separation of property regime for your marriage. After the divorce, you would then both keep exactly what you have saved. Whether divided between the two persons or kept separate, 3a pension capital remains tied up (restricted) after divorce.

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Why a marriage contract can make sense

A prenuptial agreement allows you as a couple to make individual arrangements in the event of death. Even if it may seem completely inappropriate to think about a possible separation before you marry, it can make sense to include provisions for divorce in the marriage contract. You can also sign a marriage contract at a later date that applies retroactively.

You can also answer the difficult question, what should happen with real estate in the event of divorce, in advance in a marriage contract. If you have purchased a home together as a married couple and have taken out a mortgage, a forward-looking arrangement can save you a lot of extra trouble in the event of separation, provided it stands up in the divorce court.

You cannot use a marriage contract to change the statutory division of pension assets saved in pillars 1 and 2 during the marriage. The same does not apply for pillar 3a: If you opt for “separation of property” in the marriage contract, this also applies to your pension capital in pillar 3a. A divorce will then not affect your individually managed 3a pension accounts.
A marriage contract is only valid if it has been publicly notarized. This means that a cantonal notary must be involved. In many cantons, you can contact a notary for this. Once drawn up, the marriage contract can only be changed with the consent of both parties.

You can choose from among the following alternative marital property regimes

A marriage contract allows you to make alternative arrangements and depart from the statutory provisions. You can modify the matrimonial property regime or opt for separation of property or community of property. You can only influence the distribution of pension assets in a marriage contract in the case of pillar 3a, namely through separation of property.

Modified matrimonial property regime

The law allows the matrimonial property regime to be adapted in certain respects by means of a marriage contract. Assets of the estate that are intended for the exercise of a profession or the operation of a business can then be declared as personal property. In addition, the spouses can agree that income from their own property will not be included in the inheritance. In the case of mutual investments, you can also stipulate in writing that any appreciation in value will not be taken into account later. One possible arrangement would be that in the event of divorce, only the amount invested should be returned.

Such modifications are a way for couples in business to prevent large matrimonial property claims from jeopardizing the continued existence of their company after a divorce.

Separation of property

Community of property

In a community of property arrangement, you pool your assets and income and manage everything jointly. By law, separate property consists only of personal belongings and in the event of a divorce the total property is divided equally. However, you can also decide on a different division in the marriage contract and exclude individual assets from the community of property, for example real estate, the employment of a spouse or assets with which the spouse exercises a profession or runs a business.

Conclusion

Whether or not you want to enter a marriage contract as a couple is a personal decision. Before you decide for or against it, you should know what the legal regulations mean for your income and assets and what changes are possible. It is advisable to consult a specialist. Depending on your initial situation, it may make sense to make individual provisions in the event of divorce, especially if you have brought large assets into the marriage or if you are an entrepreneur.

As far as the division of pension assets is concerned, a marriage contract offers only very limited options or none at all. It is better to make provisions for this in other forward-looking ways, for example by understanding in detail the consequences of voluntary contributions to occupational benefits insurance or pillar 3a.