Yes, we do! - What does change with the Marriage for All?

Since 1 July 2022, same-sex couples in Switzerland can get married or convert their registered partnership into a marriage. A joint declaration to the civil registry office is sufficient for this purpose. Alternatively, existing registered partnerships can be continued without special declaration. However, it is no longer possible to newly establish a registered partnership.

New features for same-sex couples

Same-sex couples have the same rights as mixed-sex married couples after getting married or converting their registered partnership into a marriage. This entails the following changes:

Change of the ordinary matrimonial property regime
There is a fundamental change in the matrimonial property regime. Previously, registered partners were generally subject to the matrimonial property regime of separation of property (Gütertrennung). This means that in the event of dissolution of the registered partnership through death or divorce, there were no compensation payments under matrimonial property law between the partners. Upon marriage or conversion of the registered partnership into a marriage, the ordinary matrimonial property regime for spouses of acquired property (Errungenschaftsbeteiligung) is now automatically applied. From the time of marriage or conversion into a marriage, the income from gainful employment as well as the assets acquired by a spouse for consideration during the marriage are included in the acquired property (Errungenschaft). In the event of dissolution of the marriage by death or divorce, the acquired property is divided equally between the spouses. Changes to the matrimonial property regime and choosing another matrimonial property regime - such as separation of property - are possible by means of a marriage contract, i.e. if a couple wishes to continue to maintain the matrimonial property regime of separation of property, it must agree to do so by means of a marriage contract.

Possibility of adoption and access to sperm donation
To date, it was only possible for registered couples to adopt their partner's child. With the possibility of marriage, same-sex couples now have access to joint adoption. Same-sex spouses can thus jointly adopt a child now.

Furthermore, same-sex female spouses are given access to sperm donation. The law now also provides for a presumption of maternity in favour of the wife who was married to the child's mother at the time of the child's birth. This means that the spouse of the biological mother is automatically recognised as mother and does not have to go through the official process of recognition.

Eligibility for facilitated naturalisation
Foreign spouses of a spouse with Swiss citizenship are eligible for facilitated naturalisation in Switzerland under certain conditions. With Marriage for All, this facilitation also applies to same-sex marriages. When converting to marriage, the duration of the registered partnership is credited in the naturalisation process. However, in case a new marriage is concluded (instead of a conversion), there is uncertainty whether the duration of the previous registered partnership is also credited. Therefore, it is currently recommended that registered partners who wish to take advantage of the facilitated naturalisation procedure convert their partnership into a marriage.

The following remains the same:

Inheritance law
There are no changes from an inheritance law perspective. Spouses, like registered partners, have a legal claim to inheritance. The statutory inheritance entitlement amounts to ½ of the inheritance if a spouse has to share the inheritance with descendants of the deceased and ¾ of the inheritance if a spouse has to share the inheritance with heirs of the parental strain (parents, siblings, nieces / nephews). This statutory regime can be amended by means of a will or inheritance contract. However, the so-called compulsory portion (Pflichtteile), to which certain legal heirs are entitled to by law, must be observed. The compulsory portion of the surviving spouse amounts to ½ of the statutory inheritance entitlement. This quota will remain the same even after the upcoming inheritance law revision, which comes into force on 1.1.2023. From 1.1.2023, however, the parents' compulsory portion, which currently applies to married couples without descendants, will cease to apply. Childless couples can therefore freely dispose of a higher portion of the estate after 1.1.2023, provided they draw up a will or an inheritance contract.

Tax law
Like registered partners, spouses are also assessed jointly for tax purposes. This means that they file a joint tax return and their income and assets - regardless of the matrimonial property regime - are added together. Due to the tax progression, this has considerable tax consequences for dual-earner couples with high taxable income despite the generally lower married tax rate. Some cantons mitigate these tax consequences at cantonal tax level with a so-called splitting.

The abolition of the so-called "marriage penalty" has been subject of a political debate for years. More than 30 years ago, the Federal Supreme Court ruled that the current tax system is unconstitutional. However, lawmakers have not yet succeeded in implementing an according regime that is in line with the Constitution. Currently, the introduction of individual taxation for spouses is being examined.

Need for legal action?
The financial consequences of marriage should be examined in detail and, where necessary, precautions should be taken to avoid unpleasant consequences with regard to taxes, in the event of separation or divorce, or in the event of death.