Prenuptial agreements
and matrimonial property regimes

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Table of contents

Reading time: approx. 20 minutes
Author: Alkatout Legal

  1. Why a prenuptial agreement covers more than just divorce
  2. A comparison of Switzerland’s three matrimonial property regimes
  3. What a prenuptial agreement can cover—and what it cannot
  4. Prenuptial agreements before marriage or during an existing marriage
  5. Prenuptial agreements and business interests
  6. Prenuptial agreements for international couples: choice of law and recognition abroad
  7. Form, validity, and potential errors in drafting
  8. When circumstances change: amending an existing prenuptial agreement
  9. Tax aspects of choosing a matrimonial property regime
  10. Typical scenarios
  11. Common mistakes
  12. When legal counsel is necessary

The short answer

A prenuptial agreement mainly governs the patrimonial effects of marriage and divorce. In Switzerland, such agreement states which matrimonial property regime applies during the marriage and how assets are divided in the event of a divorce or death—it is therefore a form of forward-looking planning, not an expression of mistrust. In Switzerland, there are three matrimonial property regimes available: the participation in accrued gains (the statutory default regime), separation of property, and community of property.

A prenuptial agreement can adapt this basic framework, provide targeted protection for specific assets—such as a business—and, for international couples, determine the applicable law. Occupational pension plans (2nd pillar pension), however, remain largely unaffected by this, as the division of pension rights follows its own mandatory rules. We draft prenuptial agreements both before marriage and postnuptial agreements during an existing marriage, and support our clients with our specialized expertise in corporate and international assets.

In addition to regulating the matrimonial property regime, many couples also wish to proactively address aspects of post-marital support in their prenuptial agreement. Since maintenance agreements are legally complex and require meticulous drafting, we analyze your situation on a case-by-case basis and develop viable solutions tailored to your specific circumstances.

1 · Why a prenuptial agreement covers more than just divorce

A prenuptial agreement takes effect not only in the event of a divorce, but from the moment it is signed. It determines which matrimonial property regime applies throughout the marriage, how assets are allocated during the marriage, and—in the event of a divorce or death—how the assets are divided upon the dissolution of the matrimonial property regime. Anyone who accepts the statutory matrimonial property regime of participation in accrued gains without modification is also making a choice—albeit an unconscious one.

A prenuptial agreement is therefore not a sign of mistrust, but rather a tool for clarity. It can be particularly useful when one spouse brings a business into the marriage or establishes one during the marriage, when there are significant differences in assets between the spouses, when a marriage has an international dimension, or when simply clarity regarding the future division of assets is desired. We provide our clients with balanced advice on these matters, taking both perspectives into account, even when we represent only one party.

2 · A comparison of Switzerland's three matrimonial property regimes

Swiss law recognizes three matrimonial property regimes, which differ fundamentally in how they treat assets acquired during the marriage or even before.

Matrimonial property regime

Basic principle

Typical application

Shared acquisitions 
(statutory default)

Separate property remains separate; assets acquired during the marriage are divided equally upon dissolution

Balanced for most couples without a specific need for special arrangements

Separation of property

Each spouse retains all of their assets 
separately; no division upon dissolution

For entrepreneurs, significant disparities in assets, or repeat marriages

Community of property

All assets or agreed-upon assets become joint 
property; division occurs according to the contractual shares

Rarely chosen, but useful in certain situations involving the joint accumulation of assets

Important: even within the community of accrued gains, individual assets can be allocated differently through a prenuptial or postnuptial agreement—so a complete change of the matrimonial property regime is not always necessary to address a specific concern.

3 · What a prenuptial agreement can cover—and what it cannot

A prenuptial or postnuptial agreement can, in particular, select or adjust the matrimonial property regime, assign individual assets to separate property, establish a valuation method in the event of divorce, and—for international couples—determine the applicable law. It can also govern how a business founded or acquired during the marriage is to be handled, thereby reducing potential valuation disputes from the outset.

However, the division of pension rights cannot be exhaustively regulated. The division of occupational pension savings (2nd pillar) accumulated during the marriage follows its own, largely mandatory rules and is deliberately not part of the matrimonial property arrangement set forth in a prenuptial or postnuptial agreement. Similarly, matters concerning children and child support cannot be conclusively determined in advance by contract, as these must always be assessed based on the best interests of the child at the time of divorce. We make our clients aware of these limitations from the outset so that no false expectations arise regarding the scope of a prenuptial agreement.

International
divorce

4 · Prenuptial agreement before marriage or postnuptial agreement during an existing marriage

A prenuptial agreement can be drawn up or amended both before marriage and a postnuptial agreement can be signed during an existing marriage. Prenuptial agreements entered into before marriage often address fundamental issues—such as the protection of an existing business or significant disparities in assets. During an existing marriage, a postnuptial agreement often becomes relevant when circumstances have changed—for example, due to the founding of a business, an inheritance, a move abroad, or as part of matrimonial protection proceedings.

A postnuptial agreement entered into during a marriage is subject to neither stricter nor less stringent formal requirements than a premarital agreement - other rules may, however, apply abroad. In both scenarios, we review whether the terms of the agreement appropriately reflect the actual interests of both spouses in order to prevent future attempts to challenge the agreement on the grounds of obvious imbalance from the outset.

5 · Prenuptial agreement and business interests

For entrepreneurs, a prenuptial agreement is often the most important tool for protecting their business and preventing disputes over marital property. A carefully drafted agreement can specify that business interests remain separate property in perpetuity, how an increase in value during the marriage is to be treated, and which valuation method applies in the event of a divorce.

In cases involving co-founders or business interests held by multiple family members, we also recommend aligning the prenuptial agreement with existing shareholder agreements and articles of incorporation. For more complex asset structures involving holding companies and trusts, we also refer you to our specialized expertise in Family office & Asset structures.

6 · Prenuptial agreements for international couples: choice of law and recognition abroad

For couples with an international dimension—such as different nationalities, assets in multiple countries, a possible future change of residence, or a move abroad—it is generally advisable to include an explicit choice-of-law clause in the prenuptial agreement. Without such a clause, the applicable matrimonial property regime is governed by general connecting factors, which may change with a change of residence; in contrast, a choice of law provides clarity from the outset, regardless of where the couple may live at a later date.

It is also important to note that a prenuptial agreement entered into in Switzerland is not automatically recognized in the same way abroad—and vice versa. We therefore review international cases to ensure that a prenuptial agreement remains valid under both Swiss law and the relevant foreign law, and we work closely with our network of partners in more than 80 countries to achieve this.

MARITAL RESIDENCE

7 · Form, validity, and sources of error in drafting

For a prenuptial agreement to be valid, it must be signed by both spouses in front of a notary. If this formality is not observed, the agreement is void—an informal or merely handwritten agreement has no effect under matrimonial property law, even if both spouses actually intended it to be valid. Other rules may apply for prenuptial agreements entered into abroad.

A prenuptial agreement must also be carefully drafted in terms of its content to be enforceable. Clauses that obviously place one spouse at an unreasonable disadvantage, or provisions that attempt to circumvent mandatory law—such as the equalization of pension rights—run the risk of being unenforceable in the event of a dispute. We therefore carefully review every prenuptial agreement for internal consistency and enforceability before it is submitted for notarization.

8 · When circumstances change: amending an existing prenuptial agreement

An existing prenuptial agreement is not a document that remains fixed forever. If circumstances change significantly—for example, due to starting a business, receiving an inheritance, the birth of children, or if spouses change their place of residence or move—it is advisable to review whether the existing agreement still adequately reflects the new situation. Any amendments are made in the same form as the original agreement, that is in Switzerland, through notarization. Other rules may apply for enforceability abroad.

If a prenuptial agreement already exists that one spouse wishes to challenge as part of an impending divorce, we carefully examine its validity and scope—in particular, whether it was properly executed, whether it also covers current financial circumstances that may not have existed at the time of signing, and whether a challenge on the grounds of obvious imbalance is possible.

9 · Tax aspects of choosing a matrimonial property regime

For international couples, there is the additional factor that the tax treatment of a prenuptial agreement can vary depending on the country of residence and country of origin, particularly when it comes to assets or business interests located abroad.

10 · Typical case scenarios

  • Case scenario 1 – couple with a significant discrepancy in assets: a couple with significantly different levels of assets wants to clarify the situation before marriage without either spouse feeling disadvantaged. In this case, we develop a balanced solution that provides security for both parties, for example, through a moderate adjustment to the share in accrued gains rather than a complete separation of property.
  • Case scenario 2 – retroactive adjustment after starting a business: a married couple got married years ago without entering into a prenuptial agreement; now one spouse is starting a business. Here, we assess whether and how a retroactive postnuptial agreement can appropriately address the company’s future appreciation in value.
  • Case scenario 3 – international couple with a change of residence: a couple of different nationalities marries in one country and later relocates to Geneva. Here, we examine whether the original prenuptial agreement remains valid in Switzerland and, if necessary, supplement it with an explicit choice-of-law clause.

11 · Common mistakes

  • Formal errors: a prenuptial agreement that has not been notarized is void, even if both spouses actually intended to enter into it. Different rules may apply to an agreement signed abroad.
  • Confusion between matrimonial property law and pension rights equalization: pension rights equalization cannot be conclusively settled by a prenuptial agreement and is often mistakenly assumed to have already been resolved.
  • Lack of coordination with corporate law: in cases involving business interests, the prenuptial agreement is often not aligned with shareholder agreements and articles of incorporation, which can lead to contradictions.
  • Neglect of the international dimension: a prenuptial agreement without a choice-of-law clause can have unexpected consequences in the event of a subsequent change of residence.
  • Unrealistic expectations regarding scope: matters concerning children and child support cannot be fully resolved in advance.

12 · When legal advice is needed

Legal advice is particularly recommended if a business or significant assets are brought into the marriage, if there is an international aspect, if an existing prenuptial agreement needs to be reviewed or amended, or if there is uncertainty regarding the scope of a prenuptial agreement.

Why our approach to prenuptial agreements

Based in Geneva, with licenses to practice law in Geneva and New York, as well as a Ph.D in law from Germany, we combine experience in family law with an in-depth understanding of corporate and international wealth structures. We are not an anonymous large law firm with a rotating staff of case managers: our clients work with the same point of contact throughout the entire process. Recognized by Chambers in the field of family law and as member of the prestigious International Academy of Family Lawyers (IAFL), we collaborate closely with notaries and tax advisors from our network.

If your case differs from these scenarios: This guide covers the typical scenarios involved in drafting prenuptial agreements. However, every financial situation has its own unique characteristics—such as particularly complex corporate structures, trusts, or multiple applicable legal systems. Describe your situation to us confidentially, and we will outline the next steps that are right for you.

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Frequently asked questions (FAQ)

Is a prenuptial agreement a sign of mistrust?

No. A prenuptial agreement provides clarity regarding the division of assets during the marriage and in the event of a crisis—regardless of whether divorce is ever considered.

In the absence of a prenuptial agreement, the property regime of acquired gains automatically applies as the statutory default.

Yes. An agreement can be drawn up or amended both before marriage (prenuptial agreement) and during an existing marriage (postnuptial agreement), in each case through notarization. Different rules may apply abroad.

No. The division of pension rights (2nd pillar) follows its own, largely mandatory rules and is deliberately not part of the matrimonial property arrangement set forth in a prenuptial agreement.

Not automatically. For international couples, we verify whether the contract remains valid under the applicable foreign law and, if necessary, recommend including an explicit choice-of-law clause.

Such an agreement is void and has no effect under matrimonial property law. A prenuptial agreement must be notarized. Different rules may apply to agreements entered into abroad.

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