Divorce - Focus on the company

Introduction

Switzerland: A country in which SMEs play a decisive role for the Swiss economy. This is particularly true because no less than 99% of all companies in Switzerland are SMEs and therefore have fewer than 250 employees. It is estimated that 90% of these SMEs are family businesses. In practice, it has been shown time and again that many SME entrepreneurs are not prepared for a possible divorce. This leads to a challenging matrimonial property dispute.

Property settlement

Joint marital property is the ordinary matrimonial property regime (Art. 196 ff. ZGB). If the spouses do not conclude a marriage contract before or during the marriage, they are automatically subject to this matrimonial property regime. The matrimonial property regime includes the acquired property and the separate property of each spouse.

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Company in own property

A business is included in the marital estate if it was already owned by the entrepreneurial spouse before the marriage or if it was transferred to a spouse during the marriage by way of inheritance or gift. Income from employment as well as dividends are to be included in the inheritance.

In the event of divorce, the question arises as to whether and how the value added to the business during the marriage should be divided between the spouses. In order to answer this question, the question ultimately arises as to which property (personal property or inheritance) the added value of the business is allocated to. A distinction must be made here between industrial and economic added value.

Did the entrepreneurial spouse receive an appropriate salary during the marriage?

• No: The company has increased in value as a result of the excessively low wage payments, which is why the difference to the appropriate wage represents an achievement and must be compensated accordingly (industrial added value).
• Yes: The company has increased in value for cyclical reasons, which is why the difference to the increase in value goes exclusively to the entrepreneurial spouse's own property; the other spouse does not participate (cyclical added value).

Company in the achievement

If one spouse only buys the company during the marriage using funds from the estate (e.g. income from employment), the company belongs to the estate and the value of the company must be divided equally in the event of a divorce. The industrial as well as the economic added value are irrelevant in this case, as both spouses benefit equally from the increase in value.

Possible measures

Matrimonial property disputes are often very complex, which is why the spouse of a business owner should prepare for a possible divorce at an early stage, especially as statistically 40% of marriages end in divorce. Preventive measures, such as the conclusion of a marriage contract or an agreement on the separation of property, can ensure that the property settlement goes as smoothly as possible.

Further information on Stritte Divorce