Receiving the 2nd pillar after a divorce
Receiving the 2nd pillar after a divorce
"I was married for 13 years and divorced in 2004. During my marriage, I stopped working for several years to look after our children. Now that I'm about to retire, can I claim some of my husband's BVG contributions?
M, Geneva
Your question presents some apparent contradictions. The new divorce law that came into force in 2000 provides for an automatic division between the spouses of the occupational pension assets accumulated during the marriage (article 122 of the Civil Code). Governed by the maxim inquisitoire, the question of the division of pension benefits is examined ex officio by the judge.
If you divorced in 2004, this provision applied to you and you have already had to receive your share of your husband's occupational pension assets.
It should be noted, however, that this money is not paid by one spouse to the other but is transferred directly from one occupational pension fund to another, thus making it possible to buy back any loss of pension provision for the spouse who has given up gainful employment in order to devote his or her time to the home and bringing up the children.
If your question is about how much of the pension assets accumulated by your ex-husband from the year of the divorce to the present day are yours, the answer is simple: nothing. Among the various principles governing divorce law, the "clean break" principle requires that, after the dissolution of the marriage, each spouse must be financially independent to the extent of his or her means.
If you have not obtained a 50/50 split of the pension assets, you will have received a compensatory payment. As an exception to the general principle, the occurrence of a pension event - partial invalidity, retirement - makes it technically impossible to divide the assets in half, as the accumulated capital is eroded by the pension already being paid. The creditor spouse is therefore entitled to a compensatory allowance, which must be refused by the court if it is manifestly unfair.
Finally, if your husband is self-employed, he may not have made any occupational pension contributions during the marriage and therefore owed you nothing.
