Sharing after ten years of separation

Sharing after ten years of separation

"I know that at the time of divorce, the occupational pension provision is divided equally between the spouses for the years they were married. Does this include my 3rd pillar insurance policy taken out during the separation? We've been separated for 10 years, so can I deduct those 10 years since we weren't living together?

M., Onex

Assets accumulated during the years of the marriage by way of occupational pension provision (LPP), commonly known as the 2nd pillar, must be shared between the spouses in accordance with articles 122 et seq. of the Civil Code. Subject to cases where it would be impossible to share this capital, each spouse is entitled to half of the occupational pension assets accumulated by the other throughout the marriage, whether the spouses live together or separately. The right to half of the occupational pension benefit exists for as long as the legal matrimonial relationship subsists, in the same way as the duty of maintenance or inheritance rights. Even a change from the ordinary regime of participation in acquests to that of separation as to property - which does not terminate the marriage - does not stop the "counter" of years of marriage.

Although the 3rd pillar is a form of pension provision with the same purpose as the LPP, it represents private, non-compulsory savings, subject to different terms and conditions depending on the type of contract agreed with the provider. Consequently, these savings are not treated as occupational pension assets within the meaning of article 122 CC, but as part of the spouse's assets. Where the contracting spouse has not yet received 3rd pillar benefits at the time of the divorce, the value of these savings, whether in the form of bank capital or a form of insurance, must be included in his or her own assets and/or acquests.

Under the ordinary regime of participation in acquests, the assets of each spouse are theoretically divided into two distinct masses: acquests and private property. The former are joint assets acquired for valuable consideration during the marriage that are intended to be shared, while the latter belong exclusively to one of the spouses.

For example, a 3rd pillar built up during the marriage out of salary will be regarded as an asset subject to division in the divorce, whereas an insurance policy whose premiums are assumed to be paid out of own assets will not have to be divided.