The Most Important Things Cohabiting Partners Should Consider
More and more Swiss couples are choosing to live together as a couple without getting married. This type of cohabitation can offer advantages, particularly in terms of taxation, but it also has some legal disadvantages. Therefore, it is advisable to consider the legal aspects of cohabitation and make appropriate arrangements. In this article, you will learn what cohabitation is and what you need to consider as cohabiting partners regarding inheritance, custody, insurance, and residency rights.
What is Cohabitation?
Cohabitation (known as "Konkubinat" in Switzerland) is not a legally recognized marital status like marriage or registered partnerships. It refers to the living arrangement where two unmarried partners live together under one roof. While cohabiting partners share a household and usually share expenses, they are not considered equivalent to married couples in the eyes of the law and do not have mutual rights or obligations.
Cohabiting partners are viewed as two separate individuals under the law. They are taxed separately, which can provide tax advantages and benefits when claiming social security (first pillar) benefits. However, in the event of separation or death, cohabiting partners do not have social or legal protection. Nevertheless, it is possible to take out certain insurances and make testamentary arrangements to ensure that the surviving partner is not left destitute.
Is it Necessary to Have a Cohabitation Agreement?
While it is not mandatory for cohabiting partners to outline their mutual rights and obligations in a cohabitation agreement, it is highly recommended. Swiss law does not recognize common rights for cohabiting partners, so a cohabitation agreement can provide some security in the event of separation or the death of a partner. This is particularly important if one partner is less or not at all employed, focusing instead on household duties.
Without a cohabitation agreement, a partner may be left without means or financial claims in the event of separation or the death of their partner. The form and content of a cohabitation agreement are not legally regulated and can be freely designed. Unlike a marriage contract, it does not need to be notarized unless it contains inheritance provisions.
It is advisable to consult a family law attorney when drafting a cohabitation agreement to ensure the best arrangements for your personal situation. Typically, a cohabitation agreement covers:
- Inventory of joint and separate assets
- Status of the shared home (rental or ownership, usage rights)
- Allocation of household expenses and respective contributions to maintenance
- Designation of beneficiaries in the event of death
What Happens in the Event of the Death of a Cohabitating Partner?
Unmarried couples are not legally protected in the event of a partner's death, as they are viewed as two separate individuals. Therefore, the surviving partner cannot receive first pillar (AHV) benefits, such as a widow's or widower's pension. Second pillar benefits (occupational pension) are generally not available to a surviving cohabiting partner either, although there are exceptions. It is essential to check with your pension fund regarding specific provisions for cohabiting partners.
By law, a cohabiting partner is not an heir. However, a partner can be designated as an heir in a will. In any case, the statutory minimum shares for children and parents of the deceased must be observed. Additionally, a cohabiting partner who inherits is not exempt from inheritance tax, which applies in most cantons.
Widow/Widower's Pension
Some pension funds (second pillar) allow for the payment of a widow's or widower's pension to a cohabiting partner. To qualify, the surviving partner must have lived with the deceased for at least five years prior to their death and must have significantly supported them financially. The pension may also be granted if the couple has one or more joint children. It is important to note that pension funds usually limit the amount paid out in a widow's or widower's pension, and a cohabiting partner cannot claim a lifelong pension.
Illness or Disability
In the event of illness or disability, Swiss law does not entitle a cohabiting partner to first pillar (AHV) benefits. However, a care contract can be established to provide compensation for caring for a partner. Note that the care of relatives is not reimbursed by health insurance.
Parental Custody
When an unmarried couple has a child, sole custody is initially granted to the biological mother (Article 252 CC). To assert his rights and obligations towards the child, the biological father must apply for paternity recognition and the parents must submit a joint declaration of parental responsibility (Article 206 CC). Aside from this, there are no specific provisions for cohabiting partners regarding parental custody. Child-related matters are governed by parental custody, which is not affected by the parents' marital status. A maintenance agreement can specify each parent's contribution to child support.
How Can Cohabitating Partners Secure Their Shared Home?
It is recommended that both cohabiting partners sign the rental agreement for their shared home to ensure equal access to the apartment at all times. This way, the lease cannot be terminated without both partners' consent in the event of separation. Jointly signing the rental agreement also means both partners are jointly liable for the rent.
If only one partner has signed the rental agreement, Swiss law does not provide specific protections for the other partner. If the non-signing partner fails to pay their share of the rent, only the signing partner is legally responsible. The signing partner also has the right to evict the non-signing partner without special notice in the event of separation.
Insurance
For cohabiting partners, it is particularly important to consider insurance to protect each other. Since cohabitation is not legally regulated in Switzerland, partners do not have legal claims to many benefits provided to married couples in the event of death. To protect yourself and your partner, you can take out a pure risk insurance policy and a voluntary third pillar (pillar 3b) insurance policy and designate your partner as the beneficiary.
FAQ: What Cohabitating Partners Should Consider
Cohabitation in Switzerland is a legally unregulated form of living together. Unlike marriage or registered partnerships, cohabiting partners are considered two separate individuals under Swiss law.
A cohabiting partner is not entitled to a widow's or widower's pension from the AHV (Old Age and Survivors Insurance) or accident insurance (first pillar benefits). However, under certain circumstances, the surviving cohabiting partner may receive benefits from the second pillar (occupational pension scheme). This depends on the provisions of the respective pension fund.
If the pension fund provides for the payment of a pension to a cohabiting partner, certain conditions must be met to qualify for the benefits. The cohabiting partners must have lived together for at least five years. Alternatively, the surviving partner must have financially supported the deceased, or the couple must have one or more joint children.
To ensure that your partner can inherit from you, it is crucial to make testamentary arrangements in advance. Otherwise, the cohabiting partner is not considered an heir by law and cannot claim inheritance rights. In such cases, the inheritance will go exclusively to the deceased partner's parents and children.
If only one cohabiting partner signs the rental agreement, the other partner has no rights to the rental contract and can be evicted in the event of separation. However, if both cohabiting partners sign the rental agreement, the termination of the lease must be jointly signed. It is also possible for the partners to agree to transfer the rental contract to one of them.
Cohabiting partners are not legally required to regulate the legal consequences of their relationship in a contract. Nevertheless, a cohabitation agreement is highly recommended. It allows for the regulation of property and financial matters in the event of separation or the death of a partner.
You can draft a cohabitation agreement independently and for free. Generally, notarization of the contract is not required. However, notarization is necessary if the contract includes provisions about inheritance matters.