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Legal implications of cohabiting

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More and more couples in Switzerland are living together but not getting married, regardless of whether or not they have children. What might once have been referred to as “common-law marriage” is now widespread, but there’s still no explicit legal framework for it. 

Isabelle Näf, legal expert at AXA-ARAG, answers some vital questions on the topic of cohabiting.

Isabelle Näf, what are the rules on custody of children?

If the father confirms his paternity at the registry office, you can declare joint custody at the same time. Alternatively, you can do this separately through social services. In the absence of any agreement or registration, the mother legally has sole custody.

In principle, the parents take care of the child jointly to the extent they are able and share the cost of childcare, maintenance, education, and protection. Specific details – including what happens if you separate – can be laid down in a cohabiting agreement

Can cohabiting partners adopt children from previous marriages?

Yes. If a couple have been living together for at least three years, they can opt for a “step child adoption” – provided both parents agree to it and it’s in the child’s interest. 

Can a couple who are living together adopt children?

Only married couples and individuals can adopt unrelated children. If you want to adopt a child as an individual, you have to be at least 28 years old, and you have to have been responsible for the child’s upbringing for at least a year. You can only adopt if your age and personal circumstances allow you to take care of the child until he or she is 18.  

If a couple buy a house, whose name is entered in the Land Register? 

If you buy a house together with your partner, you can decide for yourselves whether one of you is entered in the Land Register as the owner or both of you are entered as co-owners. Co-ownership is the norm where both partners have contributed financially to the purchase. 

Who gets the house if the couple separate?

In the event of a separation, you can either maintain or dissolve the co-ownership. If you dissolve it, the house becomes the sole property of one of you, and you have to take financial contributions and any increase in value into account when calculating the buy-out amount. 

As with a divorce, both parties can register claims and offer arguments as to why they should get the house. Justified grounds would include the fact that you’ve invested more in the house or that it wouldn’t be fair to take the children out of their familiar environment. This means that it’s a good idea to put down in writing before you buy a house who has to move out if you separate. 

The law doesn’t contain any provisions on cohabiting, so it makes sense to draw up a written agreement. It only has to be notarized if it contains details of inheritance.

Isabelle Näf, expert in matrimonial and family law at AXA-ARAG

A cohabiting agreement should include the following points:

  • Inventory: who owns what
  • When buying a house: co-ownership, financial contributions
  • Who stays in the shared home in the event of a separation and the required notice periods
  • How the household costs are shared
  • Monthly maintenance contributions to be paid by the wealthier partner after separation
  • Maintenance contributions for children
  • Custody and visiting rights for joint children
  • How joint assets are to be shared out and how losses on social security and pensions are to be offset
  • In the event of one partner’s death, inheritance arrangements and possibly whole life insurance 
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Who is liable for debts?

In general, you’re not liable for the debts of your partner or spouse. Everyone is liable for their own debts. Both partners are liable for debts arising from joint purchases to the extent of their entire assets, even if only one has actually benefited from the purchase. 

If assets are seized as part of a debt collection procedure against one of the partners, it might be impossible to determine who owns what. As a result, assets that actually belong to the partner who isn’t liable for the debt may be seized. This is why it’s advisable to draw up an inventory.

What are the rules on inheritance? 

Cohabiting partners have no legal claim to an inheritance, so it’s important to name your partner as a beneficiary in your will – but make sure you comply with the compulsory shares for children and parents. 

Cohabiting couples are taxed individually, so they usually pay less tax than they would if they were married.

Isabelle Näf, expert in matrimonial and family law at AXA-ARAG

Are there tax advantages for unmarried couples?

Married couples are taxed jointly by law. This has a negative impact for higher-income couples due to progressive tax rates. Cohabiting couples, on the other hand, are taxed individually, so they usually pay less tax than they would if they were married.

To find out more about pensions, taxes, and inheritance in relation to cohabiting, see our blog post A-Z of cohabiting

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