Divorce - what happens to the business?
In the worst-case scenario, a spouse can claim half of the business assets. However, very few business owners have sufficient liquid assets to cover this. Married individuals should therefore be sure to take precautions. By Karin von Flüe, lic. iur., attorney, legal advisor, and editor at the Beobachter Advisory Center.
The standard rules of participation in accrued gains provided for by law stipulate that both spouses participate in the economic success of their marriage. This applies regardless of the division of responsibilities. In the event of a divorce, there is sometimes a harsh settlement. The assets of each spouse are divided into two categories: the spouses' personal property and their acquired property. Each spouse is allowed to keep their own property. These are mainly the assets they already had before the marriage as well as inheritances or gifts received during the marriage. The inheritance includes the assets created during the marriage from income and capital gains. It is divided equally between the spouses. This solution works well for most spouses. Entrepreneurs, on the other hand, need to be careful. If they have built up their business during the marriage, if it has increased in value after the marriage thanks to their hard work and/or if the profits have been left in the business, their spouse can claim payment of half of these assets on divorce. In the worst case scenario, this could mean ruin. There are two main ways to protect your own business in the event of a divorce. The simplest is a marriage contract for the separation of property. With separation of property, there is no inheritance and therefore no claim to the entrepreneur's economic success. This solution works well if both spouses are economically independent of each other.
In the second option, the couple retains the matrimonial property regime of joint ownership. However, the husband and wife exclude their professional or business assets from the marital estate in a marriage contract. For example, the owner of a PR agency can ensure that the assets invested in the agency are considered his or her own property. The spouses can provide for compensation in the marriage contract. This can prevent a housewife and mother who has not been able to set aside any assets of her own from going away empty-handed. For example, the spouses could agree that the wife receives all or a larger share of the remaining assets, such as savings or the property.
You can conclude the marriage contract before or at any time after the marriage. It is also possible to agree the new rules retroactively to the date of marriage. The marriage contract must be notarized. In most cantons, the notary is responsible for this. Their services also include prior advice and drafting the content of the contract. Once a marriage contract has been concluded, it can be revoked or amended by the spouses at any time by mutual agreement. This again requires public notarization.
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