Prenuptial and postnuptial agreements
A prenuptial or postnuptial agreement governs the property relations between spouses and deviates from the statutory matrimonial property regime of participation in accrued gains—usually by providing for separate property or a modified participation in accrued gains. We draft prenuptial and postnuptial agreements both before and during the marriage, particularly when business interests, real estate, or international assets are involved. The agreement must be notarized in Switzerland and, if it involves foreign elements, can include a choice of law provision. A prenuptial or postnuptial agreement generally does not have final and binding rules on child-related matters; other legal instruments exist for these purposes. We advise you on the appropriate matrimonial property structure and assist with the notarization process.
Contact: contact@alkatout-legal.ch | +41 22 512 04 05
In Switzerland, in the absence of a prenuptial or postnuptial agreement, the standard matrimonial property regime is the “participation in acquisitions”: assets acquired during the marriage are, in principle, divided equally, while separate property—such as inheritances, gifts, or assets brought into the marriage—is excluded from the division. A prenuptial or postnuptial agreement can modify or replace this matrimonial property regime:
Modified participation in accrued gains—specific assets, such as business shares, dividends or their appreciation in value, are specifically allocated to separate property and are thus excluded from division.
Separation of property—each spouse retains their assets separately; the other spouse has no claim to them.
Community of property—less commonly chosen, this results in assets that are largely held in common by both spouses.
Combination with inheritance provisions – A marriage and inheritance contract combines matrimonial property law with inheritance law issues, such as the right of the surviving spouse to receive the largest share of the estate.
We assess on a case-by-case basis which structure best suits our clients’ financial circumstances and objectives, and highlight any interactions with inheritance law.
Before marriage—if one spouse already has substantial assets, a business, or real estate.
When starting or expanding a business—to exclude business shares from the division of marital property in the event of a separation.
During an existing marriage—a postnuptial agreement can be entered into or amended at any time, even if the couple already has children or an inheritance is pending.
In international situations—when spouses have different nationalities, reside in different countries, or hold assets abroad.
For unmarried couples intending to marry—as a supplement to a prior contractual agreement governing their cohabitation.
INTERNATIONAL MARRIAGE AGREEMENTS
For spouses with ties to multiple countries, the additional question arises as to which matrimonial property regime applies. We determine the applicable legal system in accordance with Swiss private international law and the 1978 Hague Convention, to the extent it applies, and structure the choice of law so that the prenuptial or postnuptial agreement remains valid in the respective foreign country. This is particularly relevant when a move abroad is planned or when assets are held across national borders. To this end, we work closely with our international network of partners, which covers local matrimonial and inheritance law issues in more than 80 countries.
HOW WE WORK
We specialize in complex, often internationally oriented prenuptial and property agreements and guide you through the entire process: from analyzing your financial and family situation, to structuring the matrimonial property regime and drafting the agreement, to coordinating with the notary and handling the notarization. Upon request, we periodically review existing prenuptial agreements—for example, following the establishment of a business, the receipt of an inheritance, or a change of residence abroad.
A prenuptial or postnuptial agreement governs the property relations between spouses, in particular the classification of assets as separate property or marital property, as well as the choice of the matrimonial property regime. Child-related matters are generally not covered by a such an agreement.
Unless otherwise provided, the Swiss legal system is based on the division of accrued gains. Assets acquired during the marriage are, in principle, divided equally, with the exception of separate property.
Yes. A prenuptial or postnuptial agreement is only valid if it is notarized and signed by both spouses. We will guide you through this process together with the appropriate notary’s office.
Yes, a prenuptial agreement can be entered into, amended, or replaced at any time during the marriage—for example, if your financial or family situation changes. This is then called a “postnuptial agreement”.
A prenuptial or postnuptial agreement can specifically allocate business interests and any increase in their value as well as dividends to separate property, thereby excluding them from the division of marital property. We review each case individually to determine the most appropriate structure.
That depends on the chosen legal system and the specific country involved. We determine the applicable legal system and structure the choice of law so that the prenuptial or postnuptial agreement is also enforceable in the relevant foreign country.
No. Child-related matters are handled separately from the prenuptial or postnuptial agreement, for example, as part of a separation or divorce settlement.