Separation of property does not protect pension assets, worsens a spouse's position on inheritance and offers no protection from creditors. What it actually regulates — with ZGB provisions and Federal Supreme Court rulings.
Separation of property is the most misunderstood matrimonial property regime in Switzerland. Couples choose it to "keep everything separate" and "protect what is theirs," only to discover on divorce or death that it does not provide what they expected — and, at the same time, takes away protections they never thought about.
This article explains what separation of property actually regulates — and examines in detail the four questions asked most often: pension assets, real property, the case of death, and the shortcomings of the regime.
For a general overview of all three matrimonial property regimes, how they are chosen, and the form of a marriage contract, see Marriage Contract in Switzerland. This article deals only with separation of property and its practical consequences.
Key points at a glance
| Question | Answer |
|---|
| Administration of assets | each spouse independently (Art. 247 ZGB) |
| Equalisation on termination | none — no surplus, no division |
| Pension assets | divided regardless (Art. 122 ZGB) |
| Position on inheritance | worse than under the ordinary regime |
| Protection from creditors | none (Art. 249 ZGB) |
| Co-ownership | possible, but contributions must be documented separately |
| Form of establishment | public notarisation (Art. 184 ZGB) |
| Return to the ordinary regime | possible at any time (Art. 187 ZGB) |
What separation of property actually means
Three provisions describe the regime almost completely.
Art. 247 ZGB: "Within the limits set by law, each spouse administers and uses their own assets and disposes of them."
Art. 249 ZGB: "Each spouse is liable for their own debts with their entire assets."
Art. 248 ZGB sets out the rule of evidence: anyone who claims that a particular asset belongs to one of the spouses must prove it. If proof cannot be provided, the presumption of co-ownership of both spouses applies.
The evidentiary rule — what matches, and what does not
It is important here not to conflate two different questions.
The question "who owns the item?" is resolved identically under both regimes: Art. 248 para. 1 and 2 ZGB and Art. 200 para. 1 and 2 ZGB (which governs the same question under participation in acquired property) are worded identically — whoever claims that an item belongs to one of the spouses must prove it; if this cannot be proven, co-ownership of both spouses is presumed.
The question "acquired property or own property?" arises only under participation in acquired property. For it, Art. 200 para. 3 ZGB provides that all of a spouse's assets are presumed to be acquired property — and therefore subject to division — until proven otherwise. Under separation of property, this provision has no counterpart, simply because there is nothing to divide: acquired property does not exist there as a separate pool of assets.
The practical conclusion is the same for both regimes: an inventory drawn up at the time of marriage avoids disputes over ownership years later. Under separation of property, it is no less important than the marriage contract itself.
No equalisation takes place
On termination of the regime — on divorce or death — there is no equalisation of assets between the spouses. There is no surplus to be divided in half. Each spouse keeps their own assets, debts are settled, and Art. 251 ZGB applies where property is co-owned.
This is exactly what those who choose separation of property want. The problem is that, along with it, the protection of the spouse who earned less during the marriage also falls away.
Pension assets — the main misconception
The most frequent question on this topic is whether separation of property protects pension assets from division on divorce.
No. It does not.
Art. 122 ZGB: "Rights under occupational pension provision acquired during the marriage up to the point at which divorce proceedings are initiated are equalised on divorce."
Art. 123 para. 1 ZGB: "The vested benefits acquired, together with vested-benefits assets and advance withdrawals for home ownership, are divided in half."
Three factors make this conclusion unambiguous:
- The wording of the provision. Art. 122 ZGB does not mention the matrimonial property regime in a single word. The only relevant link is the duration of the marriage up to the initiation of divorce proceedings.
- The structure of the Code. Pension equalisation is located in the fourth title (divorce), under its own heading "Occupational Pension Provision" — next to, but separate from, the heading "Matrimonial Property Law and Inheritance Law." Matrimonial property law is located in the sixth title (Art. 181 et seq.). These are two distinct legal institutions.
- Federal Supreme Court practice. In BGE 150 III 353, pension equalisation was applied in a case where the spouses had been subject to separation of property from the moment of their marriage in 1998.
A marriage contract cannot exclude this
Art. 124b para. 1 ZGB permits deviation from an equal division, or a waiver of it — but subject to two limits that are commonly overlooked:
- only in an agreement on the consequences of divorce, not in a marriage contract;
- only if adequate old-age and disability provision remains guaranteed.
A marriage contract is not an agreement on the consequences of divorce: it is typically concluded years before any divorce proceedings and is not subject to court approval. In addition, Art. 182 para. 2 ZGB limits the content of a marriage contract to choosing, terminating or changing the matrimonial property regime — pension equalisation is not a matter of matrimonial property law.
Even within divorce proceedings themselves, this area is removed from the free discretion of the parties. Art. 279 para. 1 ZPO (Swiss Civil Procedure Code) expressly reserves "the provisions on occupational pension provision." Art. 280 para. 3 ZPO obliges the court to examine of its own motion whether adequate provision remains guaranteed where the spouses deviate from an equal division or waive it.
Deviation from an equal division is also possible against the will of one of the parties — but only by court order where important reasons exist (Art. 124b para. 2 ZGB). In BGE 145 III 56, the Federal Supreme Court recognised a serious breach by one spouse of the duty to contribute to the maintenance of the family as such an important reason. This is an exception, not the rule, and it has nothing to do with the matrimonial property regime.
Advance withdrawal for home ownership
A special case addressed in BGE 150 III 353: one spouse withdrew pension funds to acquire home ownership for their own needs and reached retirement age before the marriage was dissolved. The ruling deals with how, in such a situation under separation of property, adequate compensation is determined under Art. 124e para. 1 ZGB — precisely because the withdrawal cannot be taken into account under matrimonial property law.
Practical conclusion: an advance withdrawal of pension funds for home ownership under separation of property requires a separate calculation. It does not simply "disappear" because of the matrimonial property regime.
The case of death — where separation of property costs the most
This is where the consequences are felt most, and it is precisely this aspect that is discussed least often when concluding the contract.
Inheritance shares do not depend on the matrimonial property regime. Art. 462 ZGB gives the surviving spouse, alongside descendants, half of the estate; alongside the parental line, three quarters; and, in the absence of both, the entire estate.
The difference arises before inheritance.
| Participation in acquired property | Separation of property |
|---|
| Matrimonial property phase | full division: half of the deceased's surplus passes to the surviving spouse (Art. 215 para. 1 ZGB) | no division — only the return of each spouse's own assets and the settlement of debts |
| Estate | only what remains after the division under matrimonial property law | the deceased's entire assets |
| Spouse's share alongside children | half of the smaller estate | half of the larger estate |
| Availability of the most-favoured-spouse allocation under Art. 216 ZGB | available | not available |
In concrete figures
The deceased's assets amount to CHF 1 million, the surviving spouse has no assets of their own, and there are children.
| Participation in acquired property | Separation of property |
|---|
| Under matrimonial property law | CHF 500'000 | — |
| Estate | CHF 500'000 | CHF 1'000'000 |
| Spouse's share (half) | CHF 250'000 | CHF 500'000 |
| Total to the surviving spouse | CHF 750'000 | CHF 500'000 |
The difference is CHF 250'000. The inheritance share as a percentage is the same in both cases: half. What changes is not the share, but the amount it is calculated from.
What can be compensated for
Instruments of inheritance law remain available, and since the 2023 reform their scope is wider than before:
| Instrument | Provision |
|---|
| Will | Art. 467 ZGB |
| Contract of succession — binding, unlike a will | Art. 494 ZGB |
| Disposition of the freely disposable share of the estate | Art. 470 and 471 ZGB |
| Testamentary usufruct legacy in favour of the spouse | Art. 473 ZGB |
| Waiver of inheritance by the children | Art. 495 ZGB |
| Allocation of the home and household effects | Art. 612a ZGB |
The inheritance law reform in force since 1 January 2023 reduced the compulsory portion of descendants from three quarters to half of the statutory entitlement (Art. 471 ZGB). Alongside descendants, only one quarter of the estate remains tied up — the freely disposable share is correspondingly large.
Clarification of a widespread misstatement: the compulsory portion of the spouse was not changed by the 2023 reform. It already amounted to half of the statutory entitlement before. What changed was the share of descendants, and the compulsory portion of parents was abolished entirely.
What cannot be compensated for: the most-favoured-spouse allocation of the surplus under Art. 216 ZGB. This instrument exists only under participation in acquired property — under separation of property there is no surplus to which it could apply.
Real property
Separation of property does not prevent spouses from acquiring real property jointly. Both sole ownership by one spouse and co-ownership by both are possible.
The regime provides no mechanism for accounting for unequal contributions. The rule on participation in the increase in value under Art. 206 ZGB belongs to participation in acquired property. Since separation of property has no division under matrimonial property law, there is likewise no participation in any increase in value.
Practical conclusion: the shares and the treatment of contributions should be fixed expressly — in the purchase contract, in the land register entry and, where necessary, in a separate agreement. This applies to the down payment, mortgage repayments and investments that increase the value of the property.
On termination of the regime, Art. 251 ZGB applies: if an item is co-owned and one spouse proves a predominant interest, they may claim that the item be allocated to them, against compensation to the other spouse.
Protection from creditors — which does not exist
The second common misconception: that separation of property protects one spouse's assets from the other spouse's creditors.
Art. 249 ZGB: "Each spouse is liable for their own debts with their entire assets."
The same rule applies under participation in acquired property (Art. 202 ZGB). Separation of property changes nothing here. It is not an asset-protection tool, and attempting to use it as one fails to achieve its purpose if events take an unfavourable turn.
What remains in force despite separation of property
A number of obligations do not depend on the matrimonial property regime and cannot be removed by marriage contract:
| What | Provision | Depends on the matrimonial property regime |
|---|
| Pension equalisation on divorce | Art. 122 ZGB | no |
| Duty to maintain the family | Art. 163 ZGB | no |
| Amount for free disposal | Art. 164 ZGB | no |
| Compensation for an extraordinary contribution | Art. 165 ZGB | no |
| Post-marital maintenance | Art. 125 ZGB | formally no, indirectly yes |
Post-marital maintenance requires explanation. Formally, Art. 125 ZGB does not depend on the matrimonial property regime. But determining maintenance takes into account, among other things, the assets of both spouses, and under separation of property these are distributed differently than under participation in acquired property. The amount of maintenance can therefore ultimately differ. The claim that "separation of property has no effect on maintenance" would be an oversimplification.
Art. 165 ZGB is especially important under separation of property. A spouse who has contributed substantially more to the other spouse's profession or business than their contribution to family maintenance requires is entitled to appropriate compensation. The same applies to extraordinary contributions to family maintenance from a spouse's own assets.
This is the only asset-related corrective that remains legally in force under separation of property. For a spouse who has worked for years in the other's business without appropriate remuneration, it is often the only recourse available.
How separation of property is established
By marriage contract. It can be concluded before or after the wedding (Art. 182 para. 1 ZGB). Public notarisation and the signatures of both parties are required (Art. 184 ZGB). A template downloaded from the internet and signed at home has no legal effect.
By court order. Art. 185 ZGB allows the court, on the application of one spouse, to order separation of property where an important reason exists. The law names, in particular: excessive indebtedness of the other spouse, conduct that endangers the interests of the applicant or of the marital union, an unjustified refusal of consent to a disposition of property, refusal to provide information on income, assets and debts, and permanent incapacity of judgement.
By operation of law — in certain circumstances connected with insolvency.
Changing regime during the marriage
Art. 187 para. 1 ZGB: spouses may at any time establish a different matrimonial property regime by marriage contract. A return to participation in acquired property is thus possible.
What matters more: a change of regime does not have retroactive effect. The previous regime is terminated and fully settled at the time of the change. Anyone switching to separation of property after fifteen years of marriage must first carry out a full settlement under participation in acquired property for those fifteen years. Only then does separation of property begin.
This point is regularly overlooked. A change of regime is not just a signature before a notary — it is a matrimonial property settlement covering the entire preceding period.
Costs
In the Canton of Zurich, the notary's fee schedule provides for a marriage contract CHF 200 to 4'000, but at least 1 per mille of the net assets concerned; for mutual benefit arrangements, this is calculated on the net assets of both partners.
| Item | Canton of Zurich |
|---|
| Marriage contract | CHF 200–4'000, min. 1 ‰ of net assets |
| Notarised inventory deed | CHF 150–1'000 |
As a guide: for net assets of CHF 2 million, the minimum fee is CHF 2'000; at CHF 4 million, the upper limit of the tariff is reached. Other cantons apply their own tariffs.
Who separation of property suits — and who it does not
May be appropriate:
- for self-employment or a business interest, where the increase in the value of the business should not be subject to division
- for a second marriage with children from previous relationships
- where the spouses have significantly different asset positions and both are economically independent
- where both spouses work full time and do not plan career breaks
As a rule, not appropriate:
- where one spouse reduces their working hours to care for children — precisely the case for which equalisation exists
- where securing the surviving spouse is the goal — here separation of property works against it
- where the motive is protection from creditors — it provides none
- where it is assumed that it will exclude pension equalisation — it will not
When legal advice is needed
- International couples — the law applicable to the spouses' matrimonial property relations must be determined separately
- Jointly owned real property with unequal contributions — the shares and the treatment of contributions require express documentation
- A business or a shareholding held by one spouse
- A change of regime after many years of marriage — the previous regime must be fully settled
- An existing marriage contract concluded before 2023 — the new compulsory portions widen the scope for inheritance planning
- Advance withdrawal of pension funds for home ownership — under separation of property this requires a separate calculation
- Working in a spouse's business — the question of compensation under Art. 165 ZGB
Sobiera Legal Consulting advises on matrimonial property regimes 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, 123, 124b, 124e, 125, 163, 164, 165, 182, 184, 185, 187, 200, 202, 204, 206, 215, 216, 247–251, 462, 467, 470, 471, 473, 494, 495, 612a — fedlex.admin.ch
- Civil Procedure Code ZPO (SR 272), Art. 279, 280, 281
- Federal Act of 18 December 2020 amending the ZGB (succession law), AS 2021 312, in force since 1 January 2023
- Federal Act of 19 June 2015 "Pension Equalisation on Divorce," in force since 1 January 2017
- BGE 150 III 353 — separation of property, advance withdrawal for home ownership, compensation under Art. 124e para. 1 ZGB
- BGE 145 III 56 — important reasons for deviating from an equal division
- Notary's offices of the Canton of Zurich, fee schedule item 4.2
Status: August 2026. This article provides an overview and does not replace legal advice in an individual case. The notary fee information relates to the Canton of Zurich; other cantons apply different tariffs.
Frequently asked questions
What does separation of property mean?
Each spouse independently administers, uses and disposes of their own assets (Art. 247 ZGB — Swiss Civil Code). On termination of the regime, there is no equalisation of assets between the spouses: there is no surplus to be divided. Each spouse keeps their own assets and is liable for their own debts.
Does separation of property protect pension assets on divorce?
No. This is the most common misconception. Under Art. 122 ZGB, occupational pension assets acquired during the marriage up to the point at which divorce proceedings are initiated are subject to equalisation — irrespective of the matrimonial property regime. Art. 122 ZGB does not mention the matrimonial property regime at all. Pension equalisation and the matrimonial property regime are two distinct legal institutions, regulated in different parts of the Code.
Can a marriage contract exclude pension equalisation?
No. Art. 124b para. 1 ZGB permits deviation from an equal division, or a waiver of it, only in an agreement on the consequences of divorce — a marriage contract is not such an agreement. In addition, Art. 182 para. 2 ZGB limits the content of a marriage contract to choosing, terminating or changing the matrimonial property regime. The court examines such an agreement of its own motion (Art. 280 para. 3 ZPO — Swiss Civil Procedure Code).
What does the surviving spouse receive under separation of property?
Only the inheritance share — without any prior matrimonial-property share. Under participation in acquired property, the surviving spouse first receives half of the deceased's surplus under matrimonial property law (Art. 215 para. 1 ZGB), and only what remains forms the estate. Under separation of property there is no such prior share: the deceased's entire assets immediately become the estate. The inheritance shares under Art. 462 ZGB are identical in both regimes.
How large is the difference in the event of death?
In concrete figures: the deceased's assets amount to CHF 1 million, the surviving spouse has no assets of their own, and there are children. Under participation in acquired property, the spouse receives CHF 500'000 under matrimonial property law, plus half of the remaining estate of CHF 500'000 — a further CHF 250'000 — CHF 750'000 in total. Under separation of property, the entire CHF 1 million forms the estate, and the spouse receives half, CHF 500'000. The difference is CHF 250'000.
Can this be compensated for by will?
Partly — and, since the 2023 inheritance law reform, better than before. The compulsory portion of descendants fell from three quarters to half of the statutory entitlement (Art. 471 ZGB), so the freely disposable share has increased. Additional instruments: a contract of succession (Art. 494 ZGB), a testamentary usufruct legacy (Art. 473 ZGB), a waiver of inheritance by the children (Art. 495 ZGB), and allocation of the home and household effects (Art. 612a ZGB). Important: the compulsory portion of the spouse itself was not changed by the 2023 reform — it already amounted to half of the statutory entitlement before.
What happens to jointly owned real property?
Separation of property does not prevent spouses from acquiring real property jointly — as co-ownership or joint ownership. But it has no mechanism for accounting for unequal contributions: the rule on participation in the increase in value (Art. 206 ZGB) belongs to participation in acquired property. The size of the shares and the treatment of contributions should therefore be fixed expressly in the purchase contract and in the land register. Art. 251 ZGB allows, on termination of the regime, an item of co-owned property to be allocated to the spouse who proves a predominant interest, against compensation.
Does separation of property protect against a spouse's creditors?
No — and this is the second common misconception. Art. 249 ZGB: each spouse is liable for their own debts with their entire assets. The same applies under participation in acquired property (Art. 202 ZGB). Separation of property creates no additional protection against the other spouse's creditors and is not an asset-protection tool.
What remains in force despite separation of property?
The duty to maintain the family (Art. 163 ZGB), the right to an amount for free disposal (Art. 164 ZGB), compensation for an extraordinary contribution or work in the other spouse's profession or business (Art. 165 ZGB), and pension equalisation (Art. 122 ZGB) — none of this depends on the matrimonial property regime, and none of it can be excluded by marriage contract. Post-marital maintenance (Art. 125 ZGB) is likewise formally independent of the regime, but can differ indirectly: its determination takes into account the assets of both spouses, and under separation of property these are distributed differently.
How is separation of property established?
In three ways: by marriage contract with public notarisation (Art. 182, 184 ZGB), by court order where an important reason exists (Art. 185 ZGB), and by operation of law in certain circumstances. A marriage contract can be concluded either before or after the wedding.
Can spouses return to the ordinary regime?
Yes. Art. 187 para. 1 ZGB: spouses may at any time establish a different matrimonial property regime by marriage contract. If separation of property was ordered by the court, returning to the previous regime requires a court decision setting it aside.
What does a marriage contract establishing separation of property cost?
In the Canton of Zurich, the notary's fee schedule provides for CHF 200 to 4'000, but at least 1 per mille of the net assets concerned. For net assets of CHF 2 million, the minimum fee is CHF 2'000. A notarised inventory deed costs CHF 150 to 1'000. Other cantons apply different tariffs.