The civil partnership

Robert-Pascal FONTANET, notary in Geneva, and Emmanuelle KAELIN-MURITH, notary in Bulle

On 5th June 2005, the Swiss people adopted “the Federal Act on civil partnerships between same-sex people” also known as the Partnership Act, which came into application on 1st January 2007.

Several key innovations

This Act consists of only 35 clauses but it also modifies several provisions contained in Acts on professional providence, nationality, right of residency and establishment of foreign nationals, asylum, legal organisation, rural property law, acquisition of buildings by persons abroad, insurance policies, action for debts and bankruptcy, not forgetting provisions of the civil code in terms of succession, the penal code, various fiscal acts and the Federal Act on private international law. In fact, no fewer than 31 federal acts are affected!

Only same-sex people may be “bound by a civil partnership”, according to the official terminology. In other words, heterosexuals have either the choice between getting married or not getting married.

For a long time now, notaries have offered common-law partners, heterosexual or homosexual, the possibility of drafting a contract based on simple society and on provisions relating to the matrimonial settlement, which the principle of contractual freedom allows. These contracts are of interest to people who decide not to get married, if they are heterosexual, or not to sign a civil partnership, if they are homosexual. In other cases, the Act governs the issues itself, while leaving a certain amount of flexibility in terms of settlement of assets, as we will see.

What are the main points of this Act?

The conditions and procedure of the civil partnership are very similar to those of marriage, and the devolution of the succession is based on that of spouses. In this way:

1. The partnership, according to this Act, can only be agreed between people over the age of 18, of the same sex and capable of discernment. They cannot be close relatives (neither in the direct line, nor as siblings).

2. It may be obvious, but it is impossible to be married and a civil partner at the same time. Single partnership and monogamy are the rule!

3. The partnership is recorded by a civil officer, during a public ceremony but without the two traditional witnesses. There is no provision allowing a choice for sharing a common surname.

4. Its dissolution is possible for causes similar to a divorce. It is dissolved by a judge, who can pronounce it by common request or by the request of one of the partners justifying that they have lived separately for at least one year.

5. The general effects of the partnership are similar to marriage, but the partners only owe each other “assistance and respect”, as set out in Article 12, which is rather different from the notions of “fidelity and assistance” promised by spouses, as per Article 159 of the Civil Code.

6. There is a maintenance duty between partners; shared home (the equivalent of the “family home” for spouses) is protected; each partner represents the “community” (we will come back to this term) for its everyday needs during life together and partners have a mutual duty to inform each other of their income, assets and debts.

The asset system

7. The legal system is that of the separation of property.

8. However, partners can agree to special regulations to dissolve the civil partnership. They can agree that the assets be shared on the basis of common ownership of assets acquired during the partnership, without this agreement causing prejudice to the claims of heirs of either of the partners. In other words, this agreement can cause prejudice to ascendants’ claims. It should be received in authentic form.
The communal estate is not open to them but they can always agree to a simple partnership, etc.

Family and inheritance relations

9. Like a spouse, each partner is required to assist the other in “an appropriate way” in the accomplishment of the maintenance duty and the application of parental authority with respect to children. Should their life together be suspended or the civil partnership be dissolved, the children’s judge may authorise a partner to maintain personal relations with the child of the other party.

10. Adoption and medically assisted procreation are forbidden.

11. In terms of inheritance, assimilation is complete: legal rights of the spouse and claims of his/her heirs are identical for married spouses or persons bound by a civil partnership. Furthermore, like divorce, the dissolution of the partnership produces the effect that the partners are no longer each other’s legal heirs and all provisions taken in the event of death before dissolution become null and void.

12. In terms of professional providence, also commonly called the “second pillar”, the civil partner, like a married spouse, has his/her own direct entitlements with respect to the other’s providence society (compulsory if an employee, optionally if freelance).

Other modified legislation

13. In private international law, same-sex marriages agreed abroad are recognised as civil partnerships in Swiss law.

14. Family regrouping measures are also applied to the civil partner of a refugee and his/her children under 18.

15. As for the acquisition of buildings by foreigners, the civil partner is assimilated to a spouse and does not consequently require authorisation in the case of transfer in their favour, whether during their lifetime or at death.

16. As far as tax is concerned, civil partners in the same household are considered as spouses: they file one single tax return and their income is added up.

17. In terms of social insurance (AVS in particular), the surviving civil partner is deemed to be equivalent to a widow(or widower).

18. Just for fun, we should also note that the two civil partners and their close relations and friends may not sit on the Federal Council or Federal Court at the same time.

19. Lastly, cantons have consequently adapted their legislation in terms of procedure, administrative organisation and tax law in particular. Furthermore, some cantons have adopted administrative rules favourable to unmarried homosexual or heterosexual couples; however these are mainly symbolic as the scope of cantonal competence is quite limited.

The contents of this note cannot be considered as legal or fiscal advice. Do not hesitate to consult your notary for more precise information in points of interest to you.

Geneva and Bulle, 19th December 2010