What applies without a marriage contract, what it can regulate and what it cannot: matrimonial property regimes, division of the surplus, international choice of law, costs and the clause that is almost always forgotten.
Most married couples in Switzerland live under the ordinary matrimonial property regime of participation in acquired property — namely everyone who has never changed it by way of a marriage contract. It applies automatically, without any action being required. What this means in concrete terms only becomes apparent in the event of death or divorce: that is where it is decided who owns what.
This article explains what applies automatically without a marriage contract, what a marriage contract can change, and what it — contrary to widespread assumption — cannot do. Particular weight is given to two points that are regularly missing from existing contracts: the clause for the case of divorce, and the choice of law for international couples.
Key points at a glance
| Question | Answer |
|---|
| Without a marriage contract | Participation in acquired property (Art. 181 ZGB) |
| Form | Public notarisation mandatory (Art. 184 ZGB) |
| Timing | Before or after the wedding (Art. 182 para. 1 ZGB) |
| Costs ZH | CHF 200–4'000, at least 1 ‰ of the net assets concerned |
| Can be regulated | Matrimonial property regime, allocation of the surplus, allocation of assets |
| Cannot be regulated | Child maintenance, pension equalisation, binding consequences of divorce |
| Notary | Freely selectable throughout Switzerland |
What applies without a marriage contract
Anyone who marries without agreeing anything is subject to participation in acquired property. Art. 181 ZGB formulates this as the basic rule: spouses are subject to these provisions unless they agree otherwise by marriage contract.
This matrimonial property regime recognises four asset pools — two for each spouse.
Own property and acquired property
Own property under Art. 198 ZGB consists, by operation of law, of:
- Items used exclusively for personal use
- Assets that already belonged to a spouse at the beginning of the regime
- What is later acquired by inheritance or otherwise gratuitously
- Claims for satisfaction (moral damages)
- Assets acquired in replacement of own property
Acquired property under Art. 197 ZGB is what a spouse acquires for value during the marriage, in particular:
- Earned income
- Benefits from staff welfare institutions, social insurance and social welfare institutions
- Compensation for incapacity to work
- Income from own property
- Assets acquired in replacement of acquired property
The fourth point surprises many: the income from an inherited property — that is, the rent — falls into acquired property and is divided, even though the property itself remains own property. This allocation can be changed by marriage contract (Art. 199 para. 2 ZGB).
The evidentiary rule that decides matters in practice
Art. 200 para. 3 ZGB: All of a spouse's assets are presumed to be acquired property until proven otherwise.
Anyone who claims that a particular asset is own property must prove it. After twenty years of marriage this is often no longer possible — account statements are missing, inheritances have been mixed with savings, reallocations are undocumented.
Practical consequence: An inventory drawn up at the time of marriage is often more important than the marriage contract itself. In the Canton of Zurich, a notarised inventory deed costs CHF 150 to 1'000.
The division
On dissolution of the regime, the surplus is calculated for each spouse: what remains of the acquired property after deducting the debts charged against it (Art. 210 para. 1 ZGB). A deficit is not taken into account — each spouse bears their own losses.
Art. 215 ZGB then applies: each spouse, or their heirs, is entitled to half of the other's surplus.
The three matrimonial property regimes compared
| Participation in acquired property | Separation of property | Community of property |
|---|
| ZGB articles | 196–220 | 247–251 | 221–246 |
| Applies | automatically | only by marriage contract | only by marriage contract |
| Asset pools | 4 | 2 | 3 |
| Earned income | is divided | remains with the earner | becomes joint |
| Pre-marital assets | remain own property | remain own | depends on the contract |
| Inheritances | remain own property | remain own | depends on the contract |
| Equalisation on dissolution | half of the surplus | none | half of the joint property |
| Typical for | the default case | self-employment, second marriage | single-earner marriage |
What separation of property really means
Under separation of property, each spouse administers and uses their own assets alone and disposes of them (Art. 247 ZGB). Each is liable for their own debts with their entire assets (Art. 249 ZGB). There is no equalisation under matrimonial property law.
This is the point at which separation of property is often underestimated. Anyone who reduces their gainful employment during the marriage to care for children does not build up their own assets — and receives no compensation for this under separation of property.
Two correctives nonetheless remain and cannot be excluded by marriage contract:
- Art. 165 ZGB — anyone who has made a substantial contribution to the other spouse's profession or business, or has made extraordinary contributions, is entitled to appropriate compensation
- Art. 122 ZGB — the equalisation of occupational pension assets on divorce is independent of the matrimonial property regime. A waiver is possible under Art. 124b ZGB only in the divorce agreement, and even there only if adequate old-age and disability provision remains guaranteed — the court examines this of its own motion
Even under separation of property, a presumption applies in the event of a dispute over ownership of an asset — here, however, it is the presumption of co-ownership (Art. 248 ZGB), not of acquired property.
What a marriage contract can regulate
| Subject | Provision |
|---|
| Choose, change or terminate the matrimonial property regime | Art. 182 para. 2 ZGB |
| Declare professional or business assets to be own property | Art. 199 para. 1 ZGB |
| Exclude income from own property from acquired property | Art. 199 para. 2 ZGB |
| Deviating participation in the surplus | Art. 216 para. 1 ZGB |
| Exclude the share in increase in value | Art. 206 para. 3 ZGB — written form suffices here |
The most-favoured-spouse allocation of the surplus under Art. 216 ZGB is the most common content: instead of an equal division, the surviving spouse receives the entire surplus. This is attractive from an inheritance law perspective, because this portion of the assets is set aside before the estate is divided.
Since 1 January 2023, Art. 216 para. 2 ZGB applies: the share allocated in excess of one half is not added back when calculating the compulsory portions of the surviving spouse and of joint children. The limitation continues to apply only in respect of non-joint children (para. 3) — in blended-family situations this is the decisive difference.
What a marriage contract cannot do
This is where the biggest misunderstandings lie.
| Assumption | Reality | Provision |
|---|
| "We will regulate maintenance in advance" | Binding only once approved by the court | Art. 279 ZPO |
| "We waive child maintenance" | Not permissible — the claim belongs to the child | Art. 289 para. 1 ZGB |
| "We exclude the pension equalisation" | Cannot be waived in advance — possible only in the divorce agreement | Art. 122, 124b ZGB |
| "We fully regulate the consequences of divorce" | The agreement is valid only once approved | Art. 279 para. 2 ZPO |
| "Separation of property protects against all claims" | Art. 165 ZGB continues to apply | Art. 165 ZGB |
On maintenance in detail: an advance maintenance agreement is not void as such — the Federal Supreme Court reviews such agreements (BGE 145 III 474). It becomes binding, however, only once approved by the court in the divorce proceedings, and the circumstances at the time of approval are decisive, not those at the time the agreement was concluded.
In practice this means: anyone who makes a maintenance arrangement today and divorces in fifteen years must expect the court to measure it against the income and asset situation prevailing at that later time.
Such an agreement may certainly be included in the same deed as the marriage contract — the Federal Supreme Court expressly confirms this. It does not thereby acquire effect under matrimonial property law pursuant to Art. 182 ZGB, however, and public notarisation gives it no additional binding force. The requirement of court approval remains.
The clause that is almost always missing
This is the most important section of this article.
Art. 217 para. 1 ZGB: on divorce, separation, annulment of the marriage or court-ordered separation of property, agreements on a change to the statutory participation in the surplus apply only if the marriage contract expressly provides for this.
In plain terms: anyone who has agreed a most-favoured-spouse clause without expressly mentioning divorce has a contract that takes effect exclusively on death. On divorce, the arrangement simply lapses, and the surplus is divided equally.
In marriage contracts drawn up years ago — often using a standard template — this clause is regularly missing. It is therefore worth looking at an existing contract before drawing up a new one.
International couples: the underestimated case
For couples with a foreign connection — different nationalities, moving from abroad, assets in several countries — a second regulatory layer applies.
Moving to Switzerland changes matrimonial property law retroactively
Art. 55 para. 1 IPRG: if the spouses move their domicile from one state to another, the law of the new state of domicile applies retroactively to the time of the marriage.
A couple who married in Kyiv, Moscow or Munich and moves to Switzerland is thus retroactively subject to Swiss matrimonial property law — as if they had lived here from the outset. Anyone who had separation of property in their home country may find themselves under participation in acquired property without knowing it.
The law itself provides two ways out:
- The retroactive effect can be excluded by written agreement (Art. 55 para. 1 sentence 2 IPRG)
- If a marriage contract already exists, the change of domicile has no effect on the applicable law under Art. 55 para. 2 IPRG
The second point is the reason a marriage contract is often more urgent for international couples than for purely Swiss ones: it stabilises the applicable law across national borders.
The choice of law is possible — but not free
Art. 52 para. 2 IPRG allows a choice between exactly three options:
- the law of the state in which both spouses are domiciled or will be domiciled after the marriage
- the law of the place where the marriage was concluded
- the law of one of the states of nationality
An arbitrary third law cannot be chosen. The choice of law must be agreed in writing or follow clearly from the marriage contract (Art. 53 para. 1 IPRG), and if made after the marriage and nothing else is agreed, it takes retroactive effect to the time of the marriage.
Without a choice of law
Art. 54 IPRG applies in stages: joint domicile — last joint domicile — joint national law. If the spouses never had domicile in the same state at the same time and have no joint nationality, the separation of property under Swiss law applies (Art. 54 para. 3 IPRG).
For form, Art. 56 IPRG applies: the marriage contract is formally valid if it complies with the applicable law or with the law of the place of conclusion.
Marriage contracts and inheritance law since 2023
The inheritance law reform of 1 January 2023 has noticeably widened the scope for structuring.
| Compulsory portion | until 2022 | from 2023 |
|---|
| Descendants | ¾ of the statutory entitlement | ½ |
| Parents | ½ | abolished |
| Spouse / registered partner | ½ | ½ |
For a married couple with children, the freely disposable quota therefore rose from three eighths to half of the estate. Combined with the most-favoured-spouse allocation of the surplus under Art. 216 ZGB, the surviving spouse can be secured considerably more extensively than just three years ago.
Further changes of practical relevance:
- Art. 472 ZGB — the surviving spouse loses their entitlement to a compulsory portion if, at the time of death, divorce proceedings were pending that were initiated by joint request or in which the spouses had lived apart for at least two years
- Art. 473 para. 2 ZGB — where a usufruct is granted in favour of the surviving spouse, the freely disposable portion is now one half instead of one quarter
- Art. 494 para. 3 ZGB — later dispositions that contradict a contract of succession can be challenged, unless reserved in that contract
Anyone who drew up a marriage contract or a will before 2023 should have both reviewed together. Older arrangements are tailored to the earlier compulsory portions and generally do not make full use of the scope available today.
Form, procedure and costs
The form is mandatory
Art. 184 ZGB: the marriage contract must be publicly notarised and signed by the contracting parties and, where applicable, by the legal representative.
A downloaded template, signed in private written form, has no effect in matrimonial property law — regardless of how carefully it was completed.
Capacity of judgement is required (Art. 183 para. 1 ZGB), not full legal capacity. Minors and persons under a corresponding deputyship require the consent of their legal representative (para. 2).
The notary can be freely chosen
Unlike the purchase of real property, where the principle of location applies, there is no territorial link for a marriage contract. Notarisations under matrimonial property law and inheritance law can be carried out by a notary of one's own choosing; the deed is valid throughout Switzerland.
Two limits apply: notarisation generally takes place at the official premises or the notary's office, and the notary may not notarise outside their own canton.
Costs
| Canton of Zurich | Canton of Bern |
|---|
| System | official notary's office, framework tariff | self-employed, time-based fee |
| Marriage contract | CHF 200–4'000 | at least CHF 500 |
| Calculation | based on time spent, at least 1 ‰ of the net assets concerned | hourly rate CHF 250–400 |
| Upper limit | CHF 4'000 | none |
| Inventory deed | CHF 150–1'000 | – |
The structural difference explains the spread: Zurich calculates the fee based on assets and caps it at CHF 4'000. Bern calculates purely by time spent and has no upper limit. For complex contracts, the same deed can exceed the Zurich maximum in Bern — a further argument for the free choice of notary.
To put the Zurich per-mille approach into perspective: for net assets of one million francs concerned, the minimum fee is CHF 1'000; from around four million francs, the range is exhausted.
When a marriage contract makes sense
- Self-employment or a business interest — without regulation, the increase in the value of the business falls into acquired property and is divided. This can jeopardise the continued existence of the business in the event of divorce.
- Significantly unequal assets or income
- Second marriage with children from previous relationships — here the compulsory portion limit of Art. 216 para. 3 ZGB applies
- Inheritances and gifts, in particular real property with ongoing income
- International situations — see above, Art. 55 IPRG
- One spouse reduces gainful employment in favour of childcare
- An existing marriage contract without a divorce clause (Art. 217 ZGB)
When legal advice is needed
Notary's offices notarise — but generally do not advise on conflict-of-laws issues and rarely shape the interface with inheritance law. In these cases, a prior legal review is worthwhile:
- Couples of different nationalities or moving from abroad — which law applies, and should it be chosen?
- Assets in several states — coordination with foreign law and foreign dispositions
- A business interest within the matrimonial assets — coordination of the marriage contract, articles of association and shareholders' agreement
- Marriage contract and contract of succession together — matrimonial property and inheritance law structuring interact
- Existing contracts from before 2023 — adjustment to the new compulsory portions
- Blended families — compulsory portion claims of non-joint children
Sobiera Legal Consulting advises on matrimonial property law and the drafting of marriage contracts, including in international situations, in German, English, French, Ukrainian and Russian. The initial consultation is billed on a time-spent basis; further work depends on the scope of the mandate.
Related topics
Sources
- Civil Code ZGB (SR 210), Art. 122, 165, 181–184, 196–220, 221–246, 247–251, 287, 289, 470–473, 494 — fedlex.admin.ch
- Federal Act on Private International Law IPRG (SR 291), Art. 52–58 — fedlex.admin.ch
- Civil Procedure Code ZPO (SR 272), Art. 279
- Federal Act of 18 December 2020 amending the ZGB (succession law), AS 2021 312, in force since 1 January 2023
- BGE 145 III 474 — advance agreement on the consequences of divorce
- Notary's offices of the Canton of Zurich — fee schedule item 4.2, significance of the official districts
- Ordinance on Notary Fees of the Canton of Bern (BSG 169.81), Art. 3a, 8
Status: August 2026. This article provides an overview and does not replace legal advice in an individual case. The fee information relates to the Cantons of Zurich and Bern; other cantons apply different tariffs.
Frequently asked questions
What is a marriage contract?
A publicly notarised contract by which spouses choose, change or terminate their matrimonial property regime (Art. 182 para. 2 ZGB — Swiss Civil Code). Without a marriage contract, the participation in acquired property applies automatically (Art. 181 ZGB). The marriage contract governs matrimonial property law only — not maintenance, not matters concerning children, and not the consequences of divorce in general.
What applies without a marriage contract?
The participation in acquired property. Each spouse keeps their own property — what existed before the marriage and what was inherited or received as a gift. What is acquired for value during the marriage, in particular earned income, is acquired property. On dissolution, each spouse receives half of the other's surplus — what remains of the acquired property after deducting the debts charged against it (Art. 215 ZGB).
Can a marriage contract be concluded before or after the wedding?
Both. Art. 182 para. 1 ZGB expressly permits conclusion before or after the marriage. A marriage contract concluded later is just as valid as one concluded before the wedding — the formal requirements are identical.
What does a marriage contract cost?
In the Canton of Zurich, the notarisation fee ranges from CHF 200 to 4'000, but at least 1 per mille of the net assets concerned. In the Canton of Bern, a time-based fee of at least CHF 500 applies, at an hourly rate of CHF 250 to 400. Added to this is the fee for legal drafting, unless the draft comes from the notary's office.
Must a marriage contract be notarised?
Yes, mandatorily. Art. 184 ZGB requires public notarisation and the signature of both persons. A private written contract or a completed template has no effect in matrimonial property law.
Can I freely choose the notary?
Yes. Unlike the purchase of real property, a marriage contract is not tied to the location of any asset — the notary can be freely chosen anywhere in Switzerland, and the notarised deed is valid throughout the country. Since cantonal fee schedules differ considerably, this can save money. Two limits apply: notarisation generally takes place at the official premises, and the notary may not notarise outside their own canton.
Does a most-favoured-spouse clause also apply on divorce?
Only if the marriage contract expressly provides for it. Under Art. 217 ZGB, agreements on a deviating allocation of the surplus take effect on divorce, separation or annulment of the marriage only where expressly regulated. Without this clause, the most-favoured-spouse arrangement takes effect exclusively on death — this is the most common mistake in existing marriage contracts.
Can a marriage contract regulate post-marital maintenance?
Not with binding effect. A maintenance agreement concluded in advance is not void, but under Art. 279 ZPO (Swiss Civil Procedure Code) it becomes legally valid only once approved by the court in the divorce proceedings. The court then examines the circumstances at the time of approval, not those at the time the agreement was concluded (BGE 145 III 474). Such an agreement may be included in the same deed as the marriage contract — but it does not thereby acquire effect under matrimonial property law pursuant to Art. 182 ZGB, and public notarisation does not give it any additional binding force.
Can child maintenance be waived in a marriage contract?
No. Under Art. 289 para. 1 ZGB, the claim to maintenance payments belongs to the child, not to the parents. Maintenance agreements become binding on the child only once approved by the child protection authority (Art. 287 para. 1 ZGB). Parents cannot dispose of the child's claim.
We are moving to Switzerland from abroad — does our matrimonial property regime change?
Yes, automatically and retroactively. Under Art. 55 para. 1 IPRG (Swiss Private International Law Act), a change of domicile means the law of the new state of domicile applies retroactively to the time of the marriage. The retroactive effect can be excluded by written agreement. Anyone who already has a marriage contract is protected in any case under Art. 55 para. 2 IPRG — the change of domicile then has no effect on the applicable law.
Can we choose which law applies to our matrimonial property?
Within a closed list. Art. 52 para. 2 IPRG allows a choice between the law of the state in which both spouses are domiciled or will be domiciled after the marriage, the law of the place where the marriage was concluded, and the law of one of the states of nationality. A free choice of any law is not possible. The choice of law must be agreed in writing or follow clearly from the marriage contract (Art. 53 IPRG).
What did the 2023 inheritance law reform change?
The compulsory portion of descendants fell from three quarters to half of the statutory entitlement, and the compulsory portion of parents was abolished entirely (Art. 471 ZGB). For a married couple with children, the freely disposable quota therefore rose from three eighths to half of the estate. In addition, Art. 216 para. 2 ZGB now expressly provides that an allocation of the surplus exceeding one half is not added back when calculating the compulsory portions of joint children.