Business debts - is the spouse liable?

I saw that my husband's business was going badly," says Rita Koller (name changed). But it was only when the debt enforcement officer turned up at her door with a payment order from a supplier for 12,000 francs that she really realized the seriousness of the situation. "Now I'll probably have to cover these debts with the inheritance I recently made," worries Rita Koller. "I wish we had agreed to separate property."

Rita Koller's fears are unfounded. In principle, one spouse is not liable for the debts of the other. Only in the following two exceptional cases does one spouse have to pay for the debts of the other:

1. if the spouse has declared to the creditor that he or she is jointly liable. Main example: jointly signed loan agreement.
2. if it concerns the family's day-to-day needs such as food, clothing, small household items, minor repairs or normal health expenses such as health insurance premiums or deductibles. Both spouses are always jointly and severally liable for such expenses. This means that each spouse can be sued individually by creditors for the entire amount.

As the debts of Rita Koller's husband are business debts and Rita Koller has not co-signed anything, she is not liable for these debts.

The matrimonial property regime under which a married couple lives is irrelevant for debt liability. In other words, even if Rita Koller and her husband had agreed on separation of property, the above would have applied with regard to liability for debts.

The matrimonial property regime only plays a role in the division of marital property, for example in the event of the death of a spouse or in the event of a divorce. If - as in the case of Rita Koller - the business belongs to the husband who built it up during the marriage, he must pay her half of the value of his business in the event of a divorce under the normal matrimonial property regime of participation in accrued gains. This can cause him serious financial difficulties. With a separation of property regime, on the other hand, he would not have to pay his wife anything. For Rita Koller, on the other hand, this can mean an upsetting result, for example if she has given up her own paid employment in favor of the household and children, has kept her husband's back free and he has put all his energy into his business. The agreement of a separation of property - often wrongly seen as a solution to avoid liability for the husband's business debts - should therefore be carefully considered or financial compensation for the disadvantage (usually to the wife) should be agreed.

Do you need legal advice?
The Beobachter Advisory Center offers you and your employees expert advice by telephone on legal issues relating to your company - 6 months for just CHF 99. Order the consulting package for SMEs at www.beobachter.ch/kmu or 0800 83 0800.

Book tip
Further information can be found in the Beobachter guidebook "Trau dich! Das gilt in der Ehe", by Karin von Flüe, 38 francs, 224 pages, paperback, 1st edition, April 2009, Beobachter-Buchverlag, ISBN: 978-3-85569-414-3.