Separation and Division of Pension Assets During the Marriage

Judgment 5A_24/2024

A separation, regardless of its duration, is not equivalent to a petition for divorce.

(Publication in the official collection of Federal Supreme Court decisions [ATF] planned)

A (born in 1980), a Senegalese national, and B (born in 1985), a Swiss national, were married in Switzerland in 2011; they had no children. On July 25, 2022, the wife filed a unilateral petition for divorce. The spouses lived together in a joint household for only a short time, and 9 years elapsed between their separation and the initiation of the divorce proceedings.

B, the wife did not wish to share her occupational pension assets, invoking Article 124b paragraph 2 of the Swiss Civil Code (SCC). She argued that during these long years of separation, the husband allegedly did not build up any retirement savings even though he could have worked, whereas she was expected to share hers.

The Federal Supreme Court points out that Article 124b must be applied restrictively (for example, in cases of a marriage of convenience, absence of a marital union, or severe breaches of the obligation to contribute to the family’s maintenance) and that the general principle remains an equal split.

The equal splitting of occupational pension benefits is based on the abstract criterion of the formal duration of the marriage, and not on the actual lifestyle adopted by the spouses.

A separation—even a long-term one compared to the actual time lived together—does not, in principle and on its own, constitute a valid reason under Article 124b paragraph 2 SCC.

It is recalled that following the amendment that entered into force on January 1, 2017, the period for dividing pension assets ceases upon the filing of the divorce petition. The delay was attributable to the plaintiff; therefore, if she had wished to shorten the duration and, consequently, the amount of the assets to be shared, it was her responsibility to file the petition promptly, which she failed to do.

For the record, it should be noted that prior to the January 1, 2017 amendment, the occupational pension assets acquired up until the divorce judgment became legally binding had to be shared. In practice, this caused difficulties for the courts as well as for the pension funds. Furthermore, it allowed one of the parties to use delaying tactics in order to obtain a higher settlement amount.