In the context of divorce, whether unilateral or mutual, the division of the second pillar is a matter that the judge must decide. This issue is examined separately from the liquidation of the matrimonial property regime. Thus, in the event of divorce, it is essential to distinguish between the second pillar and the third pillar. Depending on the applicable matrimonial property regime, the third pillar will be resolved during the liquidation of the matrimonial property.
The division of the second pillar is an aspect of divorce that the judge must obligatorily examine, meaning it is a matter that is reviewed ex officio. Therefore, the divorce judge has full authority to examine this issue. In the context of divorce, it is essential to provide the judge with all necessary documents to determine the amount of occupational pension assets accumulated by each spouse during the marriage.
Article 122 of the Swiss Civil Code generally mandates an equal division of the occupational pension assets accumulated by the spouses during the marriage up to the date of the divorce proceedings.
However, there are two types of exceptions to the principle of equal division. The law provides for exceptions agreed upon by the spouses, known as conventional exceptions, and those based on a judicial decision.
Exceptions agreed by the spouses
The spouses can agree to waive the equal division of occupational pension assets or specify a different allocation ratio (greater or less than half). This agreement is usually formalized through a clause in their divorce agreement.
However, in the case of a waiver, the spouses must ensure that adequate old-age and disability pension coverage remains for the spouse who would have been the creditor under the equal division. Adequate pension coverage does not require each spouse to have identical or even comparable pension assets. Thus, the requirement for adequate pension coverage is not to be interpreted strictly.
Certain circumstances may justify a waiver, such as a short marriage, a significant age difference between the spouses, substantial wealth on the part of the spouse entitled to the division, etc.
Even if the spouses agree to waive the division, the judge retains the discretion not to ratify the agreement and may balance the occupational pension assets of the spouses.
Exceptions decided by the judge
The judge may also allocate less than half of the vested benefits to the creditor spouse or none at all for justifiable reasons. When equal division proves inequitable, the judge may deviate from it.
Reasons that may lead the judge to deviate from the rule include:
- The outcome of the liquidation of the matrimonial property regime or the economic situation of the spouses after the divorce. For example, the judge might refuse to divide the second pillar if the spouses are under the regime of separation of property and the economically stronger spouse has built up a pension in the form of the third pillar exclusively, which will not be divided in the matrimonial property liquidation, while the economically weaker spouse has only a modest second pillar.
- The pension needs of each spouse, considering their age difference.
The law also allows the judge to allocate more than half of the vested benefits if the spouse is caring for joint children after the divorce. This option aims to address the pension gap that will continue to widen after the divorce because one spouse will not be able to contribute as much as the other. However, for the judge to decide on this allocation, adequate pension coverage must naturally remain with the debtor spouse.
In conclusion, although the final decision on the division of the second pillar lies with the judge, the lawyer must carefully examine this issue. The division must always be considered alongside the liquidation of the matrimonial property regime and the maintenance contribution between spouses to determine whether an equal division should apply or if deviation is warranted. Finally, it should be noted that only the Swiss judge is competent to rule on the division of the second pillar.
