Division of the 2nd Pillar in the Context of Divorce

Divorce: Division of the 2nd Pillar

In the context of divorce, whether it is unilateral or joint, the division of the 2nd pillar is one of the points that the judge must decide. It is subject to a separate examination from the liquidation of the matrimonial regime. Thus, in case of divorce, it is important to distinguish the 2nd pillar from the 3rd pillar. Indeed, depending on the matrimonial regime applicable to the marriage, the fate of the 3rd pillar will be settled within the framework of the liquidation of the matrimonial regime.
The division of the 2nd pillar is an aspect of divorce that the judge must examine obligatorily, in other words, it is a question that is examined ex officio. Thus, the divorce judge holds full power of examination in this matter. In the context of divorce, it is therefore necessary to provide the judge with all the documents necessary to determine the amount of occupational pension assets accumulated by each spouse during the union.

The rule, provided in article 122 of the Swiss Civil Code, imposes, in principle, a half-share division of the occupational pension assets accumulated by the spouses during the marriage until the day of the introduction of the divorce in court.

However, there are two types of exceptions to the principle of half-share division. Indeed, the law provides, on the one hand, the exception agreed upon by the spouses themselves, referred to as conventional, and, on the other hand, that based on a judge’s decision.

The exception agreed upon by the spouses

Spouses may decide to waive the half-share division of occupational pension assets or provide for a different distribution key (higher or lower than half). The agreement of the spouses will then, in most cases, be made by drafting a clause to this effect in their divorce agreement.
However, in case of waiver, the spouses must ensure that adequate old-age and disability provision remains assured for the spouse who would have been the creditor under the half-share division. In this regard, it should be noted that adequate provision does not require each spouse to have identical or even comparable pension assets. Thus, the requirement for adequate provision is not to be interpreted strictly.

Certain configurations may be considered in favor of a waiver, such as, for example, a short marriage, a large age difference between the spouses, a large fortune on the side of the spouse creditor of the share, etc.

In the case of waiver of the division by the spouses, it must be kept in mind that the judge is always free not to ratify the agreement and to proceed with the balancing of the occupational pension assets of the spouses.

The exception decided by the judge

The judge may also allocate a lower share than half of the exit benefit to the creditor spouse or even not allocate any for just reasons. In principle, when the half-share division is inequitable, the judge may deviate from it.
The reasons that may lead the judge to deviate from the rule include, among others:

  • The result of the liquidation of the matrimonial regime or the economic situation of the spouses after the divorce.

For example, the judge may refuse the division of the 2nd pillar in a case where the spouses are subject to the separation of property regime and the economically strong spouse has constituted a pension in the form of a 3rd pillar exclusively, which will therefore not be shared in the liquidation of the matrimonial regime, while the economically weak spouse has a modest 2nd pillar.

  • The pension needs of each spouse, taking into account in particular their age difference.

The law also gives the judge the option to allocate more than half of the exit benefit when the spouse takes charge of common children after the divorce. This option allows for filling the pension gap that will continue to grow after the divorce due to the fact that one of the spouses will not be able to contribute as much as the other. However, for the judge to decide on this distribution key, it is naturally necessary that adequate provision remains with the debtor spouse.

In conclusion, even if the final fate of the division of the 2nd pillar belongs to the judge, the lawyer must examine this question carefully. The division must always be considered alongside the liquidation of the matrimonial regime as well as spousal maintenance contributions to determine whether a half-share division should be imposed or whether it is appropriate to deviate from it. Finally, it should be remembered that only the Swiss judge is competent to deal with the issue of the division of the 2nd pillar.

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