A couple before marriage has financial structure as this: they have a joint account where they make monthly contribution to maintain the common life, and except from that they independently manage their own accounts/properties. They are going to marry, and they orally agree that in case of divorce, everything under the joint names will be divided 50%-50% and that everything else belongs to whoever has it under his name.
My first question is: if nothing is written, in case of divorce, what will happen? I am not so familiar with Swiss law, but I think that if nothing is written, at the moment of divorce, everything gained during the marriage, no matter under which name, will be added together and then divided. Is this right? Please correct me if I am wrong...
Then the couple need to write down their oral agreement in something like a prenuptial agreement to make it legally valid. The second question is: is it mandatory in Switzerland that the prenuptial agreement be done with the lawyer or public notary? Or they can just write down the contract and sign themselves?
It depends on the marriage regime, i.e. standard, separation of assets, or joint assets.
Standard is where only assets acquired during the marriage are joint property.
Separate means everything is separate, even those acquired during the marriage.
Joint is everything is joint, including assets held before the marriage.
N.B. Anything inherited is ALWAYS separate.
Tom
In case of absence of any written pre-marriage contract, which marriage regime will be the default in Switzerland?
Standard, but you are free to change at any moment, before or after the marriage.
Tom
Get lawyers. Emphasis on the plural. Each person must have their own lawyer. This helps to ensure that if a divorce occurs, one side can't claim they didn't understand the agreement. It also makes it harder for them to claim they weren't sober when they signed, which apparently happens a fair bit - at least in North America.
There's more to it than what has been written. You need to specify the nationalities of the parties and, if from a common-law country, their domiciles under the law(s) of that (those) country(yes). (Never mind what you may have read: one can have different domiciles under the laws of different countries, and for different purposes in one country. That's why treaties often define "domicile" for the purpose of that treaty, and most often equate it to "habitual residence".
Marital regime may depend on those factors, as well as personal choice. A pre-nuptial agreement can have different significance in different countries. The normal regime in Switzerland and many or most civil-law systems is a kind of Community Property. And most, perhaps nearly all, countries (including England and Scotland) except the US follow a rule of immutability: absent a court order, a couple retain the regime established at their marriage until death or divorce. The US rule is "partial mutability". Other than the curious California law on "quasi community property", property (and the earnings on it) retain their character until commingled or changed by agreement or act of law, even after a move to another state or country.
I've written pre-nups that simply specify what rule should apply when a couple moves from one country to another.
In Switzerland you should consult a notary. Notaries in principle represent the State and not the parties, which is why a typical _notaire_ will tell you the parties don't need separate counsel -- something they absolutely would need in a Common-Law country, as another as recommended. So go back to paragraph 1 in making that decision.
Agreed, and one written by a lawyer will (or at least should) include this information. But for instance, my lawyer warned me that even though my residence was in Switzerland and my husband's elsewhere at the time of signing the prenup (both of which were documented in our prenup), any split in Switzerland might not recognize the agreement, which was subject to the laws in his country where we signed it under our respective lawyers.
Documents are always "subject to the law of the jurisdiction of the judge". However, the whole point of Private International Law is to set up reasonably consistent rules to avoid a literal conflict of laws, which sometimes happens anyway.
Switzerland is almost unique in having a Private International Law code. The USA has the Restatement, Second, Conflict of Laws, drafted under the leadership of my old professor. But that's not what the law is IS, but what a committee thought it SHOULD BE.
If one party is Swiss, it is likely that Swiss law will be applied. But of course there is often forum shopping: the biography of Jean Monnet reveals that when he was about to be married to an Italian he was warned that his bride, still married to another, should she divorce as an Italian (and yes, Italy didn't have divorce at one time) her husband would get custody of the child. So Monnet, with American help, sent Silvia Giannini to Moscow where she was naturalised a Soviet citizen. There she got a divorce and custody and moved with Monnet to New York where in 1937 the courts applied their own law and she got custody. Monnet's bio in Wikipedia, and at greater length in the book by François Duchêne, tells the story. (There was probably an "ordre public" issue, something less commonly seen these days.)
You might find it useful to look through the brochure on Swiss Estates, written by a Zurich lawyer and formerly handed out by the Swiss Embassy in Washington, and now archived on the Internet: http://www.uniset.ca/misc/swissestates.pdf
However, in Switzerland you can change it at any time, BUT the communal bits are communal for the time the regime was communal, and separate when separate, so if you have communal and switch to separate, you have to calculate the value of the communal assets and separate them (on paper at least).
Tom
That is, as I said, the rule of "partial mutability". Without looking it up I wouldn't have opined whether it's the Swiss rule or not. In most civil-law countries, including in Belgium where I studied law, and in England as a result of House of Lords decisions, it's immutability. (But my thesis advisor in Belgium told me that typically judges will rubber-stamp any request for change of regime so the law means less than it says.)
The Swiss Private International Law code addresses the issue: http://www.admin.ch/opc/fr/classifie...312/index.html