Divorce: am I obliged to share my 2nd pillar?

Divorce: am I obliged to share my 2nd pillar?

"I want to get divorced but I don't think it's fair to share my second pillar with my husband, as he has chosen to work only part-time to pursue his hobbies. Am I really obliged to give him half of what I've contributed?

Noémie, Geneva

Under Articles 122 et seq. of the Civil Code, if at least one of the spouses is a member of a pension fund and no pension benefits have arisen, each spouse is entitled to half of the spouse's termination benefit calculated for the duration of the marriage. Only the amount accumulated during the marriage is taken into account, which means that the savings prior to the marriage must be deducted from the figure appearing on the annual statement provided by the employer, not forgetting the interest it has generated.

In practice, pension funds are obliged to inform their members of the amount to be divided in the divorce, as it can be complicated to calculate. Each spouse will have to inform the judge of this figure, who will divide it up according to the principle of communicating vessels, meaning that the spouse who has contributed more will pass on half of the difference in savings to the other spouse's pension fund. If the spouse does not belong to a pension fund, his or her share will be transferred to a vested benefits account in his or her name, as these funds must be used for pension purposes and cannot, in principle, simply be handed over to him or her.

By law, the spouses cannot waive this division in advance. However, they may waive it at the time of the divorce if the creditor spouse's retirement provision is guaranteed in another way, for example if the maintenance contribution is high, if it is to be paid in the form of a life annuity or if there are sufficient third-pillar assets. It is the judge who assesses the situation on a case-by-case basis, and he or she is perfectly entitled to order a division even if the spouses wish to waive it. In fact, the divorce judge has a duty to ensure that the conditions governing the separation are fair and that one party does not give up his or her rights lightly. On the other hand, the judge may also refuse the division if it proves unfair in view of the economic situation of the spouses after the divorce and what each will gain from the liquidation of the matrimonial property regime. In your case, the judge will also examine the reasons why you feel your husband has not saved enough and, in particular, whether this is the result of a division of roles within the couple, particularly in relation to the upbringing of the children.