Coordinating everyday life comes with certain challenges for every couple. This is the case for those who have just moved in together, got married, registered a civil partnership or even those who have already lived together for several years. This applies to couples where both partners grew up in the same cultural environment and have an extensive shared cultural understanding. Additional challenges often arise when going through this process with somebody who has grown up in a completely different environment, has different values, cultural standards and a different perception of what is normal. Therefore, it makes sense to be aware of the potential consequences of a binational relationship before entering a binational marriage or civil partnership. The next section provides an overview of the legal aspects of binational cohabitation.
In accordance with Swiss law, entering a marriage is possible when both partners are at least 18 years old and are mentally competent, Article 94, Swiss Civil Code (SCC). There can be no impediments to marriage (e.g., a pre-existing marriage or civil partnership). In Switzerland, marriages must be registered with the civil registry office. A religious marriage ceremony may only be performed after the civil marriage (Article 97, paragraph 3, SCC).
Before you can get married, you must start a marriage preparation procedure at the civil registry office in your municipality. The marriage preparation procedure deals with the administrative and formal preparations for the ceremony. During this process, the civil registry office will let you know what documents both you and your partner are required to submit for your marriage. Should your partner live abroad, their papers must be submitted to the Swiss embassy in the country in which they reside.
The required documents cannot be older than six months at the time of submission. They must be translated into one of the official Swiss languages (some cantons also allow documents to be submitted in English). The translation must be officially certified. Depending on the country of origin, the civil registry office may also demand an apostille from the country's ministry of justice. The civil registry office can also demand that the documents are checked by the Swiss embassy in the foreign national's home country. For this, the civil registry office demands an advance payment. It is advisable to allow sufficient time for collection and translation of the documents, as well as the potential requirement for certification through an apostille and verification by the embassy.
The civil registry office is authorised to check whether the proposed partnership is a sham marriage. This is the case if the marriage, or civil partnership, is only undertaken for the purpose of circumventing the legal immigration requirements.
According to Article 98, paragraph 4, SCC, marriage is only possible in Switzerland if both partners can prove their right to legal residence in the country. This is also the case for civil partnerships according to Article 5, Same-Sex Partnership Act (SSPA). Depending on the nationality in question, this proof will take the form of legal residence or a visa. If it is not possible to provide proof of legal residence, the civil registry office is obliged to notify the migration office.
If you decide to get married abroad, it's important to find out the bureaucratic steps you need to take in the chosen country. You can get more information either from the country's consulate in Switzerland or the country’s own civil registry office. The marriage laws of the chosen country apply.
A marriage registered abroad is recognised in Switzerland if it complies with both the legal provisions in the country where the marriage took place, and public policy (ordre public) in Switzerland. The marriage is not automatically registered in Switzerland. An application for registration must be made at the Swiss consulate in the foreign country. A marriage registered abroad between two people of the same sex is recognised as a civil partnership in Switzerland.
The law on civil partnerships, which came into force in 2007 (SSPA), enables same-sex couples to legally safeguard their union.
According to this law, same-sex couples can register their partnership at their municipality's civil registry office. Doing so joins the couple in a civil partnership with clearly defined rights and obligations. Civil partnerships, or same-sex marriages, registered abroad are recognised in Switzerland if they comply with Swiss legal principles.
Regarding family reunification and residence permits, civil partnerships have the same rights as marriages (Article 52, Foreign Nationals and Integration Act [FNIA]). Naturalisation of a foreign national is not, however, simplified through such a union. Separation of property is the standard marital property scheme for civil partnerships.
Same-sex marriage / ‘Marriage for All’ (expected to come into force from the 1st of July 2022)
The Swiss Federal Assembly passed changes to the SCC on the 18th of December 2020. There was a referendum on these changes, which the Swiss electorate accepted in a vote on the 26th of September 2021. Consequently, marriage will be legal for same-sex couples in Switzerland; the law is expected to come into force on the 1st of July 2022. In the meantime, same-sex couples can formalise their relationship by means of a civil partnership.
From the 1st of July 2022, it will no longer be possible to enter a civil partnership in Switzerland. From this point, marriage will be the only option available to couples. Couples that entered a civil partnership under the old law can change this into a marriage if both partners submit a written statement signifying their intent to a civil registry office of their choice. If the couple so wishes, the declaration of conversion can take place at a wedding venue, with witnesses present, in a ceremony akin to a marriage.
Once the declaration of conversion has been issued, the partners are considered married. This enables them to adopt a child together, improves their legal position in mutual inheritance claims, simplifies the process of naturalisation, entitles spouses to an old-age and survivors' insurance (OASI) widow's pension and allows same-sex female couples access to reproductive medicine. Participation in acquired property is now the standard marital property regime.
Important for binational couples
The implementation of ‘Marriage for All’ means that naturalisation of a foreign partner will be easier. The same laws will apply as those that applicable to heterosexual spouses.
Two unmarried persons (both same-sex and opposite-sex couples) living together in a union similar to marriage is designated as cohabitation. Couples that cohabitate, however, do not have the same rights as married couples or couples in civil partnerships. Since cohabitation is not regulated by law, cohabiting couples are legally considered to be two individuals. This effects tax and pension payments, for example.
Those who want a certain degree of legal protection can do this with a cohabitation contract. In such a contract, the following points should be covered:
Martial property regimes regulate who owns all, or part of, the assets in a marriage. Marital property laws regulate the distribution of assets in the event of separation or death. In Swiss law, there are three property regimes:
'Participation in acquired property' is the standard regime. This applies for all marriages for which no marriage contract has been concluded. 'Separation of property' applies for civil partnerships. In order to agree on a different marital property regime, the couple must sign a marriage contract certified by a notary. A marriage contract can be concluded at any point before, or during, a marriage, if both partners give their consent.
Participation in acquired property (Article 196ff, SCC)
In the case of 'participation in acquired property', both partners have personal assets and acquired assets. Personal assets include assets that the partner owned before the marriage and assets that were acquired free of charge during the marriage, such as gifts or inheritance. Acquired assets include income from employment, social security benefits and income from personal property, e.g., rental income. In the event of divorce, the marital property regime is dissolved. Each spouse retains their personal assets and, after deduction of joint debts, is entitled to half of their own and their partner's acquired assets.
Community of property (Article 221, SCC)
In the case of 'community of property', in addition to their personal assets, both spouses have communal assets which they share equally. Communal assets often comprise the entirety of marital assets, as in this case the legal definition of personal assets is less broad than in the case of 'participation in acquired property'. Neither spouse has free control of their share of the joint property. On dissolution of the marital property regime, the joint assets are distributed equally.
Separation of property (Article 247, SCC)
In the case of 'separation of property' the couple does not have any shared assets. Savings accumulated during the marriage are not divided; each spouse retains their own assets (except for pension funds in accordance with the Federal Law on Occupational Retirement). Each spouse retains their own assets and settles their own debts.
Important for binational couples
As a binational couple you are entitled to make your own decision on a martial property regime. You can choose between the law in the country in which you both reside, or the law of one of your home countries. Formal requirements must be observed when making the agreement. Please seek advice from a notary.
In Switzerland, marital law is regulated by the Civil Code (Articles 90 – 251). As a binational married couple, Swiss marital law applies to you if your marital residence is in Switzerland. This also applies if you were married abroad.
The most important rights and obligations of marriage are summarised below:
Basic principles (Article 159, SCC)
Spouses mutually undertake to strive to safeguard the interests of the marital union and to care for the children together. They owe each other loyalty and support. The spouses are equal and balance personal interests against those of their marriage.
Marital home (Article 162, SCC)
The spouses decide together where to establish the marital home. If both spouses give their consent, it is possible to establish two marital residences. A spouse may terminate a tenancy agreement, alienate the family home or limit the rights in respect of the family home by other transactions only with the express consent of the other (Article 169, SCC).
Important for binational married couples
Binational couples are obliged to live in the same household in order to obtain a right of residence within the framework of family reunification, as well as to extend their residence permit until they obtain a settlement permit, if the foreign spouse comes from a third country (Article 42, FNIA). This requirement only does not apply if important reasons are given, and the family continues to exist (Article 49, FNIA). Work or education which requires the spouse to live somewhere else on weekdays is one example of an important reason.
Maintenance of the family (Article 163, SCC)
The spouses jointly provide for the proper maintenance of the family. They agree on the contributions each of them will make, notably by providing money, looking after the household and caring for the children. Both partners are entitled to a reasonable allowance – within their means.
Duty to inform (Article 170, SCC)
Each spouse has the right to demand information from the other concerning their income, assets and debts. At the request of one spouse, the court may order the other spouse to furnish the information required and to produce the necessary documents.
Suspension of a joint household (Article 175, SCC)
Each spouse is entitled to suspend the joint household for as long as their person, financial security or the welfare of the family are seriously endangered by living together.
Important for binational couples
Suspension of the joint household may lead to the loss of the residence permit, depending on the specific situation and the duration of the marital cohabitation (see Consequences under residence law).
Liability for debts
The couple shares liability for debts if both are listed as debtors and both have signed an acknowledgement of debt, or if the money owed was used to cover the joint living expenses. Neither partner is liable for the partner's debts incurred to cover their own needs. The spouses are jointly liable for rent, health insurance and tax debts, unless they are separated.
Both partners entering a binational marriage retain their nationalities.
According to Swiss law, both spouses keep their surnames after marriage. However, it is possible to choose one of the two surnames (in the case of divorced or widowed persons, the maiden name) as the shared surname following marriage.
Should the couple opt for a shared surname, their children will receive this name. Should both spouses keep their pre-marriage surnames, when getting married, they must decide which of the two surnames their children will receive. Parents can change their minds, and opt for the other surname, until the end of the first year of the child's life.
It's possible to have the pre-marriage name added to the shared surname (e.g., Baker-Smith). This so-called double-barrelled surname is not officially certified; however, it can be entered into the individual's passport and identity card if desired.
Same-sex couples entering a civil partnership keep, in principle, their pre-marriage surnames. They can, if desired, choose one of their pre-marriage surnames as a shared surname.
Important for binational couples
Binational couples can decide to follow the law on name selection in the non-Swiss spouse's home country by means of a written declaration.
If the couple gets married in Switzerland, the foreign spouse's surname, exactly as it is in their documents from their home country, is entered into the Swiss civil register. The name registered in the foreign spouse's passport is the name which is used for the foreign spouse's Swiss residence card. Any changes made in the foreign documents must be replicated in the Swiss documents, and vice versa.
If the couple gets married outside of Switzerland, the Swiss spouse can submit the declaration concerning their surname at the Swiss consulate before the marriage or, at the latest, 6 months after the marriage at the Swiss consulate, at the registry office where they were born, or at the registry office where the currently reside.
Unmarried parents with shared care of their children can opt for the children to take the father's surname. If no declaration of intention is made, the children automatically take their mother's surname.
Important for binational couples
If the couple does not share a surname, it is useful to have the name of the legal representative noted in the passport of the child or children. This can make travelling abroad easier.