And if I ever got divorced...

And if I ever got divorced...

"I'm about to marry my Prince Charming and, at the risk of sounding pessimistic or even selfish, I'd like to start planning the financial consequences of a possible separation. In addition to opting for the system of separation of property, can I also sign an agreement stipulating that no maintenance contributions will be paid by either party?

Gigi, Geneva

17,566: this is the number of marriages that were dissolved by divorce in the course of 2011, according to data provided by the Swiss Federal Statistical Office. This established social phenomenon has given rise to a growing need among future spouses to plan for the consequences of a hypothetical future divorce.

One of the factors likely to influence divorce is the possibility of choosing a matrimonial property regime other than that of participation aux acquêts, the regime applicable in the absence of a marriage contract between the spouses. The legislator has given the spouses the option of adopting one of the other two legal systems: separation as to property or community of property (which is much rarer). The choice is therefore essentially limited to three options.

On the other hand, the legislature has not adopted any provisions relating to advance agreements on the effects of divorce, which spouses are increasingly concluding in practice even before they have any real intention of divorcing. One example is an agreement stipulating that ownership of jointly acquired property will revert to one of the spouses only in the event of divorce.

Part of the doctrine accepts that an agreement of this type is binding from the moment it is concluded, but that the divorce judge remains free to refuse to ratify it if he or she considers it unfair. Another school of thought, on the other hand, takes the view that an advance agreement is likely to contain excessive commitments that are contrary to personal rights and that the spouse can only validly make commitments during the divorce proceedings when he or she is fully aware of the consequences of the positions he or she has taken. The Swiss Federal Supreme Court has not ruled on this issue, but seems to agree with the doctrine that recognises the validity of advance agreements entered into even before the intention to divorce arises.

It is clear from the above that you can, of course, enter into an agreement with your future spouse under which he or she would waive all maintenance contributions in the event of separation, and vice versa. However, it must be emphasised that the judge may refuse to ratify such an agreement if he or she considers it unfair, particularly if one of you is unable to meet the minimum subsistence requirement, or simply considers that such an undertaking is invalid as excessive.