The home in the event of a divorce: understanding ownership and division of assets

Forms of ownership and their significance

In Switzerland, there are three main types of ownership that determine how a property is divided up in the event of a divorce.

• Sole ownership: only one partner is registered as the owner in the land register. This situation often occurs if one of the partners bought the house before marriage or took on the financing alone. In the event of a divorce, the house usually remains in the possession of the registered owner, unless the other partner can prove that they have contributed significantly to the increase in value of the property. In such cases, compensation for the increase in value may be claimed.

• Co-ownership: both partners are registered as owners in the land register, usually with equal shares (50/50). This form of ownership enables a fair distribution of sale proceeds or mortgage costs.

• Joint ownership: both partners own the house together without specific shares. This form of ownership requires a joint decision about the house in the event of a divorce. The marriage contract often sets out how the matrimonial assets are to be divided in the event of a divorce.

Matrimonial property regimes and their effects

Depending on the matrimonial property regime chosen, the distribution of assets in the event of a divorce differs. If no marriage contract has been concluded, the matrimonial property regime of community of acquisitions automatically applies. With the participation in acquired property, your assets are divided into personal property and acquired property. Personal property includes all assets that you already owned before you married or received during your marriage through an inheritance or gift.

Acquired property includes all assets that you have acquired together during your marriage. In the event of a divorce, the acquired property is divided equally between the partners, and the personal property remains in the possession of the original owner.

Another matrimonial property regime is the community of property. Married couples can define this in their marriage contract. In this case, assets are divided into personal property and common property. The common property includes all jointly acquired assets and those expressly designated as joint property in the marriage contract. In the event of a divorce, the joint property will be divided according to the agreements made in the marriage contract.

Finally, there is the option of separation of property, which is also defined in a marriage contract. When property is separated, both partners retain their own assets and there is no joint ownership. This means that in the event of a divorce, each partner retains their own assets, and no joint assets need to be divided.

However, if an asset is under co-ownership and a spouse can prove an overriding interest in the asset (e.g. in the shared apartment), this asset can be allocated to this partner in its entirety in accordance with Article 251 of the Swiss Civil Code. In such a case, the other partner is entitled to compensation.

Shared property – what can you do?

There are several options for dealing with joint ownership in the event of a divorce.

• Takeover by one partner: one partner can buy out the other and assume ownership of the house, including the mortgage. The bank must agree to the transfer of the mortgage.

• Joint ownership: both partners can continue to own the house jointly. This requires clear agreements regarding the division of costs (mortgage, taxes, maintenance). Good communication and mutual cooperation are a must for this solution.

• Selling the property: the house is sold, and the proceeds are divided according to the ownership shares. This is often the simplest solution when the partners cannot agree or no one is able to assume ownership of the house alone.

Dealing with mortgages

Property itself is one thing. It also tends to come with a mortgage that will continue to apply even after a divorce. Both partners are jointly liable for this, regardless of who stays in the house. How can you handle this situation?

One option is for one partner to assume the entire mortgage. This is a good solution if one partner wants to stay in the house. Under this option, the bank will check the creditworthiness of the remaining partner to ensure that they can afford the necessary payments alone. An agreement, which should be certified by a notary’s office, defines who is solely responsible for the mortgage.

If the financial burden is simply too high and neither partner can take on the mortgage, selling the house with the mortgage is a way out. This is often a viable option but requires the consent of both the buyer and the bank.

A third option is that you continue to pay for the mortgage together, even if you no longer live together. This requires a high degree of cooperation and transparent communication. In an agreement, you can determine how payments and other running costs such as maintenance, taxes and insurance will be fairly divided in the future. If you then have these conditions legally validated, there will be no conflicts.

Frequently asked questions about home ownership in the event of a divorce

What happens to our house in the event of a divorce?

The division depends on the form of ownership and the matrimonial property regime of your marriage. In the case of sole ownership, the house usually remains in the possession of the registered owner. For co-ownership and joint ownership, you have to agree whether you want to sell the house or whether one of you wants to assume ownership of the house.

Can one partner enforce the sale of the house?

No, the sale of the house cannot usually be enforced without the consent of both partners, unless otherwise stipulated by a court decision or written agreement.

Can we continue to own the house together, even if we’re divorced?

Yes, you can continue to own the house together. However, it is important that you make clear agreements on how the costs are to be shared and that you have legal safeguards in place to deal with all the relevant aspects.

What if we can’t reach an agreement on the house?

If you can’t reach an agreement, mediation will help you find a solution as a first step. If that doesn’t work, the matter needs to be resolved in court.

What happens if one of us can no longer pay after the separation?

If possible, the other partner must take over the payments if both partners are registered in the land register. Alternatively, you can restructure the mortgage or sell the house.