Divorce agreement

Anticipatory divorce agreement: planning tomorrow's consequences today

Under Swiss law, spouses may regulate in advance the financial consequences of a potential divorce. This instrument, known as an anticipatory divorce agreement, allows the parties to set out in writing any waivers and financial arrangements well before a separation becomes a reality. Studio Legale e Notarile Haab, based in Lugano, regularly assists couples who wish to structure their financial situation with clarity and foresight.

Separation of property and marital agreement

The starting point is often the separation of property regime (Art. 247 CC). Unlike the participation in acquisitions regime, under separation of property each spouse retains full ownership of everything earned and acquired during the marriage. In the event of divorce, neither spouse may claim anything from the other's assets: each takes back what belongs to them, including property acquired or received during married life.

This regime must be established by means of a marital agreement in the form of a public deed, that is, authenticated by a notary (Art. 182 para. 1 CC and Art. 184 para. 1 CC). The agreement may be concluded either before or after the wedding ceremony. Hugo Haab and Roberto Haab, assist spouses in drafting these deeds. Atty. Roberto Haab, as notary, ensures compliance with the formalities required by law.

What can be regulated by an anticipatory agreement?

In practice, it is common for spouses, in addition to choosing separation of property, to mutually waive post-divorce maintenance contributions (so-called "alimony") and the division of occupational pension assets (second pillar). All of these matters may be included in the anticipatory divorce agreement. This is an instrument that concerns central aspects of each spouse's future financial security.

An important point: unlike the marital agreement, the anticipatory agreement does not require the form of a public deed. Simple written form is sufficient. Once signed, the agreement binds both parties. Neither spouse may revoke it unilaterally, not even during future divorce proceedings.

Judicial approval: a mandatory step

The anticipatory divorce agreement does not take effect automatically. At the time of divorce, the court must approve it (Art. 111 et seq. CC). Approval is granted if the court is satisfied that the agreement was concluded freely, with full awareness, and that its content is clear, practicable, and not manifestly inequitable.

It is important to note that the court assesses the circumstances at the time of divorce, not those existing when the agreement was signed. If the circumstances have changed substantially, approval may be refused. It is not enough for the agreement to be merely disadvantageous for one of the spouses: refusal occurs only when conditions have become such that the agreement appears manifestly inequitable. This remains the principal risk of an agreement concluded many years before the actual separation.

Occupational pension: a specific safeguard

If the agreement provides for a waiver of the division of second-pillar assets, the court verifies that the waiving spouse nonetheless has adequate pension provision (Art. 124b para. 1 CC). The purpose is to prevent that person from becoming dependent on public assistance. This is a protective provision that the court applies of its own motion, even when both spouses agree to the waiver.

Summary

The anticipatory divorce agreement is a useful instrument that is becoming increasingly widespread in family planning in Switzerland. It allows spouses to freely determine the financial consequences of a potential divorce, with the sole requirement of written form. Its definitive effectiveness, however, remains subject to judicial review at the time of divorce.

Studio Legale e Notarile Haab in Lugano provides comprehensive advice on matrimonial law and divorce agreements. Contact us for a consultation with Hugo Haab or Roberto Haab.

For a personal consultation: info@haablegal.ch | +41 91 913 30 70