Dividing the LPP by half is not always compulsory

Dividing the LPP by half is not always compulsory

I've been unhappily married for years and want a divorce, but I certainly don't want to share the occupational pension provision I've built up over decades of hard work! My young husband only thinks about partying, resists all job offers and, of course, has only a meagre pension fund... Will he automatically be entitled to half of my pension?

M, Geneva

It is true that under Article 122 of the Civil Code (CC), occupational pension claims acquired during the marriage and up to the commencement of divorce proceedings must in principle be shared between the spouses.

However, since 1 January 2017, the law has allowed both the couple and the court to deviate from the 50:50 split or to waive the split of the occupational pension, provided that adequate provision for old age and disability remains in place (art. 124b CC).

In making this assessment, the judge will take into account the living conditions and, in particular, the age of the spouse claiming the division. If the latter does not have sufficient pension provision, the judge will have to check whether he or she is still capable of building one up after the divorce. Waiver of the right to share the pension should therefore not be an obstacle for couples whose marriage was short and who have had no children. In such circumstances, a court will also be able to decide to award less than half of the savings to the creditor spouse, or even to award nothing for good reason. This would be the case, for example, if the 50/50 split proved unfair because of the pension needs of each spouse, given their age difference.

In a decision handed down in October 2017, the Swiss Federal Supreme Court ruled that in the case of a relatively young spouse, whose relationship had remained childless and who had many years ahead of him to build up sufficient pension provision, there was just cause to waive the division of occupational pension assets accumulated during the marriage. In this case, our high court took into account the 12-year age difference between the spouses and the fact that the wife had 36 times more pension assets than the husband.

As a result, it is now possible to plead for a waiver of the division of occupational pension assets in divorce cases, particularly where the spouses are of different ages.