Cecily Zamora
Switzerland has a complex legal system with a hierarchy of political levels that reflect the country's legal and constitutional character. Swiss law consists of Federal law, which includes the Federal Constitution, the principle of subsidiarity, and the Cantons of Switzerland, and Internal law. While Swiss law does not explicitly refer to common law, it does recognize civil partnerships between same-sex couples, commonly known as the Federal PACS. Additionally, Swiss law addresses various aspects of cohabitation, inheritance, and matrimonial property relations, demonstrating a comprehensive approach to legal frameworks beyond traditional marriage structures.
| Characteristics | Values |
|---|---|
| Recognition of same-sex partnerships | Yes, same-sex couples can register their partnership with the competent registry office to give it a legal framework. |
| Inheritance rights for cohabiting partners | No, cohabiting partners have no legal claim to inheritance. Each partner can leave their property to the other in a will, but the deceased partner's legal heirs are entitled to a part of the estate. |
| Inheritance tax for cohabiting partners | Yes, there is an inheritance tax for cohabiting partners. |
| OASI survivor's pension for cohabiting partners | No, cohabiting partners are not entitled to an OASI survivor's pension. |
| Common-law marriage recognition | No, Swiss federal law does not define a special legal framework for common-law marriages or partnerships registered outside Switzerland. However, Geneva cantonal law provides for a form of partnership open to both same-sex and opposite-sex couples. |
| Federal law | Consists of the Federal Constitution, the principle of subsidiarity, and the Title 3 Confederation, Cantons and Communes. The Cantons are sovereign except where limited by the Federal Constitution and they exercise all rights not vested in the Confederation. |
| Internal law | Consists of various parts, including the Systematic Compilation, the Official Compilation of Federal Legislation, and the Federal Gazette. |
| Abolition of capital punishment | Yes, capital punishment has been abolished in Switzerland. |
| Legalization of homosexual acts | Yes, homosexual acts between adults have been legalized, but the age of consent was set at 20 years until 1990, compared to 16 years for heterosexual acts. |
| Conversion of short prison sentences into fines | Yes, short prison sentences (below one year) can be converted into fines, with an upper limit of CHF 3000 per day of the sentence. |
| Divorce jurisdiction of Swiss courts | The Swiss courts have divorce jurisdiction if the plaintiff or defendant is domiciled in Switzerland or if the plaintiff is a Swiss national residing in Switzerland. |
| Applicable law for matrimonial property | Spouses can select the law that will govern their matrimonial property relations. If they do not make a choice, the law of the country in which they are both domiciled will apply. |
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What You'll Learn
Swiss legal education and practising law
Switzerland has some of the most well-known public universities in Europe, but only nine have law schools. The University of Zurich is the largest university in Switzerland, with 26,000 enrolled students, and is considered one of the foremost educational institutions in the country. The University of Zurich's Law School ranks highly for research and is the most diverse faculty in Europe. The University of Bern is another top Swiss university, ranked by the World University Rankings as 113th in the world. The University of Bern offers courses in Legal Theory, History of Law, Public Law, Private Law, Penal Law, and Economic Law. The University of Lausanne, located in the heart of Switzerland's French-speaking region, is ranked 198th globally and offers a Bachelor's program in Law as well as Master's specializations. The University of Basel is a comprehensive university that follows the tradition of European universities.
Switzerland's commitment to cutting-edge research offers international students a profound understanding of global legal affairs. Tuition fees are relatively low compared to the US and UK, and there are scholarship opportunities available for international students. Switzerland's prominence in business and finance also means that there are plenty of career opportunities for lawyers, especially in sectors like banking, finance, and intellectual property rights.
The University of Zurich's LL.M. program offers specializations in international contracts and technology licensing agreements. The University also offers a Master's in Sports Law, providing students with knowledge of the complexities of sports law. The University of Neuchâtel offers an LL.M. in International Business Law, which takes into account the complex legal needs of the global economy. The University of Bern offers a Master in Public Management and Policy, which provides students with in-depth knowledge and consolidates their communication, methodological, and linguistic skills. The program enables students to obtain a special qualification in certain areas of Law and awards the title of Master of Law (M Law).
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Swiss Federal Judiciary
The Swiss Federal Judiciary is composed of the Swiss Federal Tribunal (also known as the Federal Supreme Court), the Swiss Federal Criminal Court, and the Swiss Federal Administrative Court. The Swiss Federal Tribunal is the supreme court of the Swiss Confederation and the head of the Swiss judiciary. It is headquartered in the Federal Courthouse in Lausanne in the canton of Vaud and acts as an appellate court, reviewing cases previously decided by lower federal and/or cantonal courts. The Federal Tribunal generally sits as either 3 or 5 judges, depending on the matter being heard, and does not have the power to strike down unconstitutional laws. The Federal Tribunal is divided into several divisions, with 38 ordinary and 19 substitute judges, assisted by 350 other employees, including around 150 court clerks. The Federal Tribunal issues final rulings on disputes between individuals, cantons, individuals and the government, and cantons and federal authorities. While the Federal Tribunal examines the uniform application of federal law, it does not examine the facts established by lower courts unless they are deemed manifestly arbitrary. When an appeal is filed, the Federal Tribunal examines whether the law was correctly applied in the contested decision, ensuring the uniform application of federal law throughout the country.
The Swiss Federal Criminal Court acts as a trial court of first instance in certain matters of federal criminal law, specifically attributed to federal jurisdiction. The Swiss Federal Administrative Court acts as an appellate body, reviewing decisions of the Swiss Federal Administration and, in some cases, cantonal authorities.
The Federal justices are proposed by the Judicial Committee and elected by the United Federal Assembly (National Council and Council of States) for a term of six years and can be re-elected an unlimited number of times, provided they have not reached the upper age limit of 68. While anyone with the right to vote at the federal level may be elected a federal justice, in practice, only proven jurists from the judiciary, legal profession, academia, or the public sector are elected. The Federal Supreme Court also has 19 deputy justices, who serve in a part-time capacity and are elected by the Federal Assembly.
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Cohabitation agreements
In Switzerland, the law considers any two people living together without being married or in a registered partnership as single individuals. Couples in this arrangement do not enjoy the same rights as married couples or those in a registered partnership. A cohabitation agreement can, therefore, be a useful tool for couples in Switzerland to define their common rights and obligations.
It is important to note that cohabitation agreements are legally binding, provided they are drafted, executed, and signed properly. Therefore, it is recommended to obtain legal advice before preparing such an agreement. The agreement should also be reviewed periodically, especially when there are significant changes in circumstances, such as the birth of a child.
In summary, cohabitation agreements provide clarity and security to unmarried couples by allowing them to contractually set expectations and protect themselves from unnecessary costs and litigation should their cohabitation break down.
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Inheritance law
Legal Heirs
The legal heirs of a deceased person are their spouse or registered partner, followed by their children and their descendants, and then their parents, siblings, and grandparents. The closer the relation to the deceased, the higher their position in the legal order of succession.
Inheritance Without a Will
If a person dies without a will, their estate will be distributed among their legal heirs according to their statutory succession rights. The estate will be divided between the spouse or partner and the children, or the children's children if the children have predeceased the deceased. If there are no children, the estate will be divided between the spouse and the parents of the deceased. If the parents are also deceased, the siblings will inherit, followed by nieces and nephews, and then grandparents.
Inheritance With a Will
A person can make a will or an inheritance contract to distribute their assets according to their wishes. However, this is subject to certain limitations. For example, children or their descendants are entitled to half of their statutory inheritance share, even if the will states otherwise. Similarly, a spouse or registered partner is entitled to at least 50% of the inheritance.
Changes to Inheritance Law
Switzerland's inheritance law, which is over 100 years old, was revised in 2020 and came into force on January 1, 2023. The most notable change is the reduction of compulsory portions, allowing individuals to freely dispose of a larger part of their estate. Previously, the compulsory portion for children was three-fourths, while parents were entitled to half of the statutory inheritance share. Now, the compulsory portion for children is half, while there is no longer a compulsory portion for parents, allowing the spouse to be given preference.
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Divorce jurisdiction
Switzerland has divorce jurisdiction if the plaintiff is domiciled (i.e. permanently resident) in Switzerland, or if the defendant is domiciled in Switzerland, or if the plaintiff is a Swiss national residing in Switzerland. This is outlined in Article 51 of the Swiss Statute on Private International Law.
Swiss courts will also have divorce jurisdiction if only one spouse is a Swiss national and the action cannot be brought at the domicile of either spouse or cannot reasonably be expected to be brought there. This is covered in Article 60 of the Swiss Statute on Private International Law.
If the spouses have no common domicile, their common national law will apply, and if they have no shared nationality, Swiss law will apply. This is outlined in Article 54 of the Swiss Statute on Private International Law.
In the case of expats, British nationals living in Switzerland may not have jurisdiction to divorce in England, and they may be advised that divorcing in Switzerland could lead to a more favourable financial outcome. It is important to note that financial claims can be made in England after a divorce abroad under the Matrimonial and Family Proceedings Act 1984.
Swiss law will govern the divorce unless both spouses have the same foreign citizenship and only one is residing in Switzerland, in which case their shared citizenship's law would be applicable.
In Switzerland, there are three marital regimes: participation in acquired property, community of property, and separation of assets. The division of assets will follow the marital regime applicable.
Swiss law is applicable for the split of occupational pension rights. The 2nd Pillar pension fund, a mandatory pension scheme, must be equally split between spouses to ensure both parties receive retirement benefits post-divorce. The 3rd Pillar, a private pension scheme, is subject to the liquidation of matrimonial property and will be a function of the marital regime chosen by the spouses.
Switzerland does not recognise foreign rulings on divorce-related sharing of Swiss occupational pension assets, and Swiss courts will refuse to recognise a foreign divorce decision if it violates Swiss public policy.
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Frequently asked questions
Common law is a legal framework for unmarried couples who live together, also known as common-law spouses.
Swiss federal law does not recognize common law for opposite-sex couples. However, Geneva cantonal law provides for a form of partnership open to both same-sex and opposite-sex couples, known as the Geneva PACS.
The Cantons of Switzerland are sovereign except where their sovereignty is limited by the Federal Constitution. The Federal law consists of the Federal Constitution, the principle of subsidiarity, and the Title 3 Confederation, Cantons, and Communes.
