Entry Into Force of “Marriage for All” on 1 July 2022: What Changes?

In a nutshell

As of July 1, 2022, same-sex couples will thus have the right to civil marriage in Switzerland. Moreover, from that date onwards, it will no longer be possible to enter into a registered partnership.

Are you concerned?

This article provides an overview of the legal implications of the new “marriage for all” legislation in several important areas.

Conversion of registered partnerships to marriages

Currently[1], civil marriage is not open to same-sex couples in Switzerland. If they wish to formalize their union, they can only enter into a registered partnership, which has some similarities to marriage, but also some fundamental differences, particularly with respect to the matrimonial regime (see below). As for same-sex couples who have married abroad, they are recognized in Switzerland as registered partners.

What will happen to your registered partnership when “marriage for all” comes into effect on 1 July 2022?

Three situations must be distinguished:

• If you have entered into a registered partnership in Switzerland without getting married abroad, your registered partnership will not automatically be converted into a marriage. However, as of 1 July 2022, you can request a conversion at any time by sending a joint declaration to the civil registry. You will then be considered married from the date of the declaration of conversion.
• If you were married abroad before 1 July 2022, meaning that you are currently recognized as registered partners in Switzerland, you will automatically be considered as a married couple with retroactive effect to the date of your marriage abroad. However, the entry in the civil registry will not be changed automatically. If you wish to be registered as spouses, you will have to apply to the civil registry.
• If you were married abroad before 1 July 2022, but are not yet resident in Switzerland and plan to settle in Switzerland after the amendment comes into force, you will automatically be recognized as married from the date of your marriage abroad and will be registered as such in the civil registry.

Matrimonial regime

One of the fundamental differences between registered partnership and marriage is the regime applicable to the couple’s property relations.

Indeed, unless they choose the regime of separation of property by concluding a marriage contract before a notary, the spouses are subject to the Swiss legal matrimonial acquired property regime (“participation aux acquêts”). In the event of divorce or death, they must divide the assets acquired during the marriage, in particular their income.

However, the system is reversed for registered partners, who are automatically subject to the separation of property regime, unless they choose another regime by signing a property agreement (“convention sur les biens”) before a notary. In the event of dissolution of the registered partnership or death, there is in principle no division of the partners’ assets and each partner retains his or her own assets (subject to any joint assets).

What effect will the possible conversion of your registered partnership to marriage have on your matrimonial property regime?

The answer depends on your particular situation:

• If you have entered into a registered partnership in Switzerland without being married abroad and you decide not to convert it into a marriage, the regime of separation of property or the regime chosen in your property agreement will continue to apply. No special steps are required if your current regime is suitable for you.
• If you have entered into a registered partnership in Switzerland without being married abroad, and you choose to convert it into a marriage, the ordinary acquired property regime will apply from the date of the conversion if you have not concluded a property agreement. In the event of divorce or death, the property acquired from the date of the conversion will therefore be divided. If you wish to continue with the separation of property regime, a marriage contract will be required. However, if you have concluded a property agreement in the past, it will continue to apply. Therefore, you will not need to enter into a marriage contract if you wish to keep your current regime.
• If you are Swiss residents but were married abroad before 1 July 2022, meaning that you are currently recognized as registered partners in Switzerland, the ordinary acquired property regime will apply retroactively to the date of your marriage abroad.

However, there are two options if you want to avoid this effect:

1. If you do not want retroactivity, you can indicate in writing to your spouse that the separation of property is maintained for the period before 1 July 2022. This means that only property acquired since that date will be divided in the event of divorce or death. The declaration must be made before 1 July 2022, so we recommend that you act quickly in this case.
2. If you wish to keep the regime that applied to you before 1 July 2022 for the duration of your marriage, you must provide for this in a marriage contract in authentic form. This regime will then apply from the date of your marriage, without any distinction between the two periods.

• If you were married abroad before 1 July 2022, but are not yet resident in Switzerland and plan to move there after the amendment comes into force, the ordinary acquired property regime will apply retroactively to the date of your marriage abroad, unless you have concluded a marriage contract, in which case the chosen regime will continue to apply.

Filiation

Currently[2] , a person in a registered partnership can only adopt his or her partner’s child, while married couples can jointly adopt a child.

Swiss law is also very restrictive in the area of medically assisted procreation. Indeed, it prohibits both egg donation and surrogate motherhood. Only sperm donation is authorized for married couples.

What will the coming into force of “marriage for all” change regarding children?

As of 1 July 2022, if you are a same sex married couple, you will also be able to jointly adopt a child.

In addition, if you are two married women, you will be able to receive a sperm donation in Switzerland, which was not possible before. The wife of the mother receiving the sperm donation will then be legally presumed to be the other parent of the child.

However, if you are two married men, you will not be able to use medically assisted procreation in Switzerland, as egg donation and surrogate motherhood are not allowed.

Facilitated naturalization

Foreign spouses of Swiss nationals can benefit from the facilitated naturalization procedure if they meet certain conditions, in particular if they have resided in Switzerland for a total of five years, including the year preceding the submission of the application, and have been living in a conjugal union with their Swiss spouse for three years.

Are you thinking of obtaining Swiss citizenship?

With the entry into force of “marriage for all” on 1 July 2022, if you are the foreign wife of a Swiss woman or the foreign husband of a Swiss man, the facilitated naturalization procedure will also be open to you.

Estates and taxation

Finally, registered partners are already assimilated to married couples in matters of inheritance law and taxation. Thus, the entry into force of “marriage for all” will not lead to any changes in these two areas.

[1] That is, until 30 June 2022.

[2] That is, until 30 June 2022.