¹ Where the spouses jointly re­quest di­vorce and sub­mit a com­pre­hens­ive agree­ment on the con­sequences of the di­vorce along with any ne­ces­sary doc­u­ments and with joint ap­plic­a­tions in re­spect of the chil­dren, the court shall hear the spouses both sep­ar­ately and to­geth­er. The hear­ing may com­prise two or more ses­sions.

² If the court is per­suaded that de­sire for di­vorce and the agree­ment are the product of free will and care­ful re­flec­tion and that the agree­ment with the ap­plic­a­tions in re­spect of the chil­dren may be ap­proved, the court shall is­sue the di­vorce de­cree.

¹ The spouses may jointly re­quest di­vorce and ask the court to de­cide mat­ters on which they can­not reach agree­ment.

² As in the case of com­pre­hens­ive agree­ment, the court shall hear the parties on those con­sequences of the di­vorce on which they have reached agree­ment and on their re­quest that the re­main­ing con­sequences be de­cided by the court.

³ ...¹⁷⁹

A spouse may pe­ti­tion for di­vorce if, at the time the pe­ti­tion is filed or at the time the di­vorce re­quest is re­placed by a di­vorce pe­ti­tion, the spouses have lived apart for at least two years.

Pri­or to the ex­piry of the two-year peri­od, a spouse may pe­ti­tion for di­vorce if the mar­riage has ir­re­triev­ably broken down for com­pel­ling reas­ons for which he or she is not re­spons­ible.

¹ Spouses may pe­ti­tion for a sep­ar­a­tion de­cree sub­ject to the same re­quire­ments as ap­ply to di­vorce.

² ...¹⁸⁴

³ The right to pe­ti­tion for di­vorce is un­af­fected by the sep­ar­a­tion de­cree.

¹ By op­er­a­tion of the law, the sep­ar­a­tion de­cree im­ple­ments the mar­it­al prop­erty sep­ar­a­tion of prop­erty re­gime.

² Oth­er­wise, the pro­vi­sions gov­ern­ing meas­ures for the pro­tec­tion of the mar­it­al uni­on ap­ply mu­tatis mutandis.

¹ A spouse who has changed his or her sur­name on mar­riage re­tains that sur­name fol­low­ing di­vorce; he or she may at any time de­clare be­fore the civil re­gis­trar the wish to re­vert to the name by which he or she was known pri­or to the mar­riage.

¹ The pro­vi­sions of mar­it­al prop­erty law ap­ply to the di­vi­sion of mar­it­al prop­erty.

² Di­vorced spouses have no stat­utory rights of in­her­it­ance in re­la­tion to each oth­er.¹⁸⁶

³ Un­less there is an in­struc­tion to the con­trary, spouses may not raise any claims based on test­a­ment­ary dis­pos­i­tions:

1.

after di­vorce;

2.

after the death of a spouse dur­ing di­vorce pro­ceed­ings that res­ults in the sur­viv­ing spouse los­ing his or her right to claim the stat­utory en­ti­tle­ment.¹⁸⁷

¹ If a spouse must re­main in the fam­ily home be­cause of the chil­dren or for oth­er com­pel­ling reas­ons, the court may trans­fer the rights and ob­lig­a­tions un­der the ten­ancy agree­ment to that spouse provided this is not in­equit­able for the oth­er.

² The pre­vi­ous ten­ant is jointly and sev­er­ally li­able for pay­ment of the rent up to the date on which the ten­ancy ends or may be ter­min­ated pur­su­ant to the ten­ancy agree­ment or by law, but for a max­im­um peri­od of two years; if an ac­tion is brought to re­cov­er rent due, he or she is en­titled to set off the amount paid in in­stal­ments equal to the amount of the monthly rent against any main­ten­ance pay­ments owed to the oth­er spouse.

³ If the home be­longs to the fam­ily of one of the spouses, the court may, on the same con­di­tions, grant the oth­er spouse a right of res­id­ence for a fixed term in re­turn for reas­on­able com­pens­a­tion or set-off against main­ten­ance pay­ments. Where new and com­pel­ling reas­ons so re­quire, such right of res­id­ence may be re­stric­ted or re­voked.

In the event of di­vorce, any oc­cu­pa­tion­al pen­sion as­sets ac­crued dur­ing the mar­riage up to the point at which di­vorce pro­ceed­ings com­mence are di­vided equit­ably.

¹ Ter­min­a­tion be­ne­fits in­clud­ing ves­ted be­ne­fits and early with­draw­als for pur­chas­ing own­er-oc­cu­pied prop­erty are di­vided equally.

² Para­graph 1 does not ap­ply to one-off con­tri­bu­tions from in­di­vidu­al prop­erty in ac­cord­ance with the law.

³ The ter­min­a­tion be­ne­fits to be di­vided are cal­cu­lated on the basis of Art­icles 15–17 and 22a or 22b of the Ves­ted Be­ne­fits Act of 17 Decem­ber 1993¹⁹⁰.

¹ If, at the point at which di­vorce pro­ceed­ings com­mence, a spouse is draw­ing an in­valid­ity pen­sion pri­or to the stat­utory re­tire­ment age, the amount to which he or she would be en­titled un­der Art­icle 2 para­graph 1^ter of the Ves­ted Be­ne­fits Act of 17 Decem­ber 1993¹⁹² fol­low­ing can­cel­la­tion of the in­valid­ity pen­sion counts as the ter­min­a­tion be­ne­fits.

² The pro­vi­sions on the equit­able di­vi­sion of ter­min­a­tion be­ne­fits ap­ply mu­tatis mutandis.

³ The Fed­er­al Coun­cil de­term­ines in which cases the amount un­der para­graph 1 may not be ap­plied in the di­vi­sion be­cause there has been a re­duc­tion due to over-com­pens­a­tion.

¹ If, at the point at which di­vorce pro­ceed­ings com­mence, a spouse is draw­ing an in­valid­ity pen­sion after the stat­utory re­tire­ment age or draw­ing a re­tire­ment pen­sion, the court de­cides at its own dis­cre­tion how the pen­sion is to be di­vided. In do­ing so it primar­ily takes in­to ac­count the dur­a­tion of the mar­riage and the pen­sion re­quire­ments of each spouse.

² The share of the pen­sion awar­ded to the spouse en­titled thereto is con­ver­ted in­to a life-long pen­sion. This is paid to the en­titled spouse by the li­able spouse’s oc­cu­pa­tion­al pen­sion fund or is trans­ferred to the en­titled spouse’s own oc­cu­pa­tion­al pen­sion fund.

³ The Fed­er­al Coun­cil reg­u­lates:

1.

the ac­tu­ar­ial con­ver­sion of the share of the pen­sion in­to a life-long pen­sion;

2.

the pro­ced­ure in cases in which the re­tire­ment be­ne­fits are post­poned or the in­valid­ity pen­sion is re­duced due to over-com­pens­a­tion.

¹ The spouses may, in an agree­ment on the con­sequences of the di­vorce, agree not to di­vide the as­sets equally or not to di­vide them at all if there are suf­fi­cient re­tire­ment pen­sion and in­valid­ity pen­sion funds oth­er­wise.

² The court may award the en­titled spouse less than half of the ter­min­a­tion be­ne­fits or rule that they should not be di­vided if good cause ex­ists. Good cause ex­ists above all when equal di­vi­sion would be un­reas­on­able:

1.

in view of the di­vi­sion of mar­it­al prop­erty or the eco­nom­ic cir­cum­stances fol­low­ing di­vorce;

2.

in view of the pen­sion re­quire­ments, in par­tic­u­lar with re­gard to the dif­fer­ence in age between the spouses.

³ The court may award the en­titled spouse more than half of the ter­min­a­tion be­ne­fits if he or she cares for joint chil­dren fol­low­ing the di­vorce and the li­able spouse con­tin­ues to have suf­fi­cient re­tire­ment and in­valid­ity pen­sion as­sets.

¹ The spouses’ mu­tu­al en­ti­tle­ments to ter­min­a­tion be­ne­fits or a share of a pen­sion are off­set. The pen­sion en­ti­tle­ment is off­set be­fore the share of the pen­sion awar­ded to the en­titled spouse is con­ver­ted in­to a life-long pen­sion.

² Ter­min­a­tion be­ne­fits may only be off­set against a share of a pen­sion if the spouses and the oc­cu­pa­tion­al pen­sion in­sti­tu­tions agree.

If, hav­ing con­sidered the pen­sion re­quire­ments of both spouses, an equit­able di­vi­sion of oc­cu­pa­tion­al pen­sion as­sets is un­reas­on­able, the li­able spouse shall owe the en­titled spouse a lump sum pay­ment.

¹ If the equit­able di­vi­sion of pen­sion fund as­sets is not pos­sible, the li­able spouse shall owe the en­titled spouse ad­equate com­pens­a­tion in the form of a lump sum pay­ment or as a pen­sion.

² A Swiss judg­ment may be amended at the re­quest of the li­able spouse if pen­sion en­ti­tle­ments ex­ist­ing abroad have been off­set by ad­equate com­pens­a­tion pur­su­ant to para­graph 1 and such pen­sion en­ti­tle­ments are then di­vided up in a for­eign de­cision that is bind­ing on the for­eign party li­able to pay pen­sion con­tri­bu­tions.

¹ If a spouse can­not reas­on­ably be ex­pec­ted to provide for his or her own main­ten­ance, in­clud­ing an ap­pro­pri­ate level of re­tire­ment pro­vi­sion, the oth­er spouse must pay a suit­able con­tri­bu­tion.

² In de­cid­ing wheth­er such a con­tri­bu­tion is to be made and, if so, in what amount and for how long, the fol­low­ing factors in par­tic­u­lar must be con­sidered:

1.

the di­vi­sion of du­ties dur­ing the mar­riage;

2.

the dur­a­tion of the mar­riage;

3.

the stand­ard of liv­ing dur­ing the mar­riage;

4.

the age and health of the spouses;

5.

the in­come and as­sets of the spouses;

6.

the ex­tent and dur­a­tion of child care still re­quired of the spouses;

7.

the vo­ca­tion­al train­ing and ca­reer pro­spects of the spouses and the likely cost of re­in­teg­ra­tion in­to work­ing life;

8.

ex­pect­ancy of fed­er­al old age and sur­viv­or’s in­sur­ance be­ne­fits and of oc­cu­pa­tion­al or oth­er private or state pen­sions, in­clud­ing the ex­pec­ted pro­ceeds of any di­vi­sion of with­draw­al be­ne­fits.

³ Ex­cep­tion­ally, a main­ten­ance con­tri­bu­tion may be denied or re­duced if it would clearly be in­equit­able, par­tic­u­larly be­cause the spouse oth­er­wise en­titled to re­ceive such con­tri­bu­tion:

1.

has grossly neg­lected his or her duty to con­trib­ute to the main­ten­ance of the fam­ily;

2.

has wil­fully brought about his or her own in­di­gence;

3.

has com­mit­ted a ser­i­ous crim­in­al of­fence against the oth­er spouse or a per­son close to him or her.

¹ The court shall fix an amount to be paid peri­od­ic­ally by way of main­ten­ance con­tri­bu­tion and set the date on which the duty of main­ten­ance com­mences.

² Where jus­ti­fied in spe­cif­ic cir­cum­stances, a lump sum set­tle­ment may be ordered in­stead of reg­u­lar pay­ments.

³ The court may at­tach con­di­tions to the main­ten­ance con­tri­bu­tion.

The spouses may wholly or in part ex­clude any al­ter­a­tion of the reg­u­lar main­ten­ance pay­ments stip­u­lated in the agree­ment.

The court may dir­ect that the main­ten­ance con­tri­bu­tion will auto­mat­ic­ally in­crease or de­crease de­pend­ing on spe­cified changes in the cost of liv­ing.

¹ In the event of a sub­stan­tial and en­dur­ing change in cir­cum­stances, the peri­od­ic main­ten­ance pay­ments may be re­duced, can­celled or sus­pen­ded for a cer­tain time; an im­prove­ment in the cir­cum­stances of the party en­titled to main­ten­ance may be taken in­to ac­count only if the pay­ments stip­u­lated in the di­vorce de­cree provided suf­fi­cient main­ten­ance.

² The party en­titled to main­ten­ance may re­quest that the pay­ments be ad­jus­ted in line with fu­ture in­fla­tion if the in­come of the oth­er party has in­creased un­ex­pec­tedly since the di­vorce.

³ With­in five years of the di­vorce, the party en­titled to main­ten­ance may re­quest that pay­ments be ordered or in­creased provided the di­vorce de­cree states that it was not pos­sible at that time to or­der suf­fi­cient main­ten­ance pay­ments and provided the eco­nom­ic cir­cum­stances of the party ob­liged to pay main­ten­ance have since im­proved.

¹ The duty to pay main­ten­ance ex­pires on the death of either the re­ceiv­ing party or the pay­ing party.

² Un­less oth­er­wise agreed, it like­wise ex­pires on the re­mar­riage of the party en­titled to re­ceive main­ten­ance.

¹ Where the li­able party fails to pay main­ten­ance, an of­fi­cial agency des­ig­nated by can­ton­al law shall on re­quest, in an ap­pro­pri­ate way and usu­ally without charge, as­sist the party en­titled to main­ten­ance to en­force his or her claims.

² The Fed­er­al Coun­cil de­term­ines the terms of en­force­ment as­sist­ance.

¹ Pub­lic law may provide for ad­vance pay­ments to be made should the li­able per­son fail to make the ne­ces­sary main­ten­ance pay­ments.

² If the state au­thor­ity makes main­ten­ance pay­ments to the en­titled per­son, the main­ten­ance en­ti­tle­ment with all rights is as­signed to the state au­thor­ity.

¹ If the party ob­liged to pay main­ten­ance fails to do so, the court may or­der his debt­ors to make pay­ment in whole or in part to the party en­titled to main­ten­ance.

² If the party ob­liged to pay main­ten­ance per­sist­ently fails to do so, or if there are grounds to sus­pect that said party is pre­par­ing to ab­scond or is dis­sip­at­ing or con­ceal­ing his as­sets, the court may or­der him to post ap­pro­pri­ate se­cur­ity for fu­ture main­ten­ance con­tri­bu­tions.

¹ The court reg­u­lates par­ent­al rights and ob­lig­a­tions in ac­cord­ance with the pro­vi­sions on the leg­al ef­fects of the par­ent-child re­la­tion­ship. In par­tic­u­lar it reg­u­lates:

1.

par­ent­al re­spons­ib­il­ity;

2.

res­id­ence;

3.

con­tact (Art. 273) or the shar­ing of par­ent­ing du­ties; and

4.

child main­ten­ance con­tri­bu­tions.

² It shall con­sider all cir­cum­stances im­port­ant to the child's best in­terests. It shall take ac­count of a joint pro­pos­al by the par­ents and, if feas­ible, the opin­ion of the child.

³ It may or­der that the child main­ten­ance con­tri­bu­tion con­tin­ue to be paid after the child reaches the age of ma­jor­ity.

¹ At the re­quest of either par­ent, the child or the child pro­tec­tion au­thor­ity, new ar­range­ments for par­ent­al re­spons­ib­il­ity shall be made by the child pro­tec­tion au­thor­ity provided this is in the child’s best in­terests due to a sub­stan­tial change in cir­cum­stances.

² The re­quire­ments for the modi­fic­a­tion of oth­er par­ent­al rights and -ob­lig­a­tions are gov­erned by the pro­vi­sions on the ef­fects of the par­ent-child re­la­tion­ship.²⁰²

³ If the par­ents agree, the child pro­tec­tion au­thor­ity re­as­sesses par­ent­al re­spons­ib­il­ity, res­id­ence and ap­proves a child sup­port agree­ment. In the oth­er cases, the court com­pet­ent to modi­fy the di­vorce de­cree de­cides.²⁰³

⁴ If the court is re­quired to de­cide on the modi­fic­a­tion of par­ent­al re­spons­ib­il­ity, res­id­ence or the child main­ten­ance con­tri­bu­tion for a minor child, it shall if ne­ces­sary also re­as­sess con­tact or shar­ing of par­ent­ing du­ties; in the oth­er cases, the child pro­tec­tion au­thor­ity shall de­cide on the modi­fic­a­tion of con­tact or shar­ing of par­ent­ing du­ties.²⁰⁴

Re­pealed

¹ The wed­ding ce­re­mony binds the spouses in mar­it­al uni­on.

² They mu­tu­ally un­der­take to strive to safe­guard the in­terests of the mar­it­al uni­on and to care jointly for the chil­dren.

³ They owe each oth­er loy­alty and sup­port.

¹ Each spouse re­tains his or her sur­name.

² However, the pro­spect­ive spouses may de­clare to the civil re­gis­trar that they wish bear one of their sur­names as the fam­ily sur­name.²⁰⁸

³ If the pro­spect­ive spouses re­tain their sur­names, they de­cide which of the sur­names their chil­dren will bear. In jus­ti­fied cases, the civil re­gis­trar may re­lieve the pro­spect­ive spouses of this ob­lig­a­tion.²⁰⁹

Each spouse re­tains his or her can­ton­al and com­mun­al cit­izen­ship.

The spouses jointly de­cide where to es­tab­lish the mar­it­al home.

¹ The spouses jointly provide for the prop­er main­ten­ance of the fam­ily, each ac­cord­ing to his or her abil­ity.

² They agree on the con­tri­bu­tions each of them will make, not­ably by provid­ing money, look­ing after the house­hold, caring for the chil­dren or sup­port­ing the oth­er’s ca­reer or busi­ness.

³ In so do­ing they take due ac­count of the needs of the mar­it­al uni­on and of their own per­son­al cir­cum­stances.

¹ A spouse who looks after the house­hold, cares for the chil­dren or sup­ports the ca­reer or busi­ness of the oth­er spouse is en­titled to re­ceive from the lat­ter a reas­on­able al­low­ance for his or her own per­son­al use.

² When de­term­in­ing said al­low­ance, ac­count must be taken of the per­son­al re­sources of the re­ceiv­ing spouse and the need to provide con­scien­tiously for the fam­ily, ca­reer and busi­ness.

¹ Where the con­tri­bu­tion made by one spouse to the oth­er’s ca­reer or busi­ness is sig­ni­fic­antly great­er than re­quired in the light of the lat­ter’s con­tri­bu­tion to the main­ten­ance of the fam­ily, he or she is en­titled to reas­on­able com­pens­a­tion.

² The same ap­plies if a spouse has con­trib­uted sig­ni­fic­antly more of his or her own in­come or as­sets to the main­ten­ance of the fam­ily than he or she was ob­liged to con­trib­ute.

³ However, a spouse is not en­titled to com­pens­a­tion if such ex­traordin­ary con­tri­bu­tion was made un­der a work, loan or part­ner­ship agree­ment or on the basis of some oth­er leg­al re­la­tion­ship.

¹ While liv­ing to­geth­er un­der the same roof, both spouses rep­res­ent the mar­it­al uni­on with re­gard to the day-to-day needs of the fam­ily.

² A spouse may rep­res­ent the mar­it­al uni­on with re­gard to the oth­er needs of the fam­ily only if:

1.

au­thor­ised so to do by the oth­er spouse or by court or­der;

2.

the in­terests of the mar­it­al uni­on brook no delay and the oth­er spouse is un­able to con­sent due to ill­ness, ab­sence or oth­er sim­il­ar reas­ons.

³ Each spouse is per­son­ally li­able for his or her own ac­tions and, to the ex­tent that these do not ex­ceed his or her powers of rep­res­ent­a­tion in a man­ner ap­par­ent to third parties, also renders the oth­er spouse jointly and sev­er­ally li­able for such ac­tions.

In the choice and pur­suit of his or her ca­reer or busi­ness, each spouse must have due re­gard to the oth­er and to the wel­fare of the mar­it­al uni­on.

Each spouse may enter in­to trans­ac­tions with the oth­er or with third parties un­less the law provides oth­er­wise.

¹ 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.

² If the spouse can­not ob­tain such con­sent or it is with­held without good cause, he or she may pe­ti­tion the court.

¹ Each spouse has the right to de­mand in­form­a­tion from the oth­er con­cern­ing his or her in­come, as­sets and debts.

² At the re­quest of one spouse, the court may or­der the oth­er spouse or a third party to fur­nish the in­form­a­tion re­quired and to pro­duce the ne­ces­sary doc­u­ments.

³ This does not ap­ply to any in­form­a­tion held by law­yers, so­li­cit­ors, doc­tors, clergy and their aux­il­i­ary staff which is sub­ject to pro­fes­sion­al con­fid­en­ti­al­ity.

The can­tons must en­sure that spouses ex­per­i­en­cing mar­it­al prob­lems may seek help in­di­vidu­ally or jointly from mar­riage guid­ance or fam­ily coun­selling agen­cies.

¹ If a spouse fails to ful­fil his or her du­ties to the fam­ily or if the spouses dis­agree on mat­ters of im­port­ance to the mar­it­al uni­on, they may ap­ply jointly or sep­ar­ately to the court for me­di­ation.

² The court re­minds the spouses of their du­ties and at­tempts to settle their dif­fer­ences; if the spouses con­sent, ex­perts may be con­sul­ted or they may be re­ferred to a mar­riage guid­ance or fam­ily coun­selling agency.

³ If ne­ces­sary, at the re­quest of one spouse the court will take the steps en­vis­aged by law. The pro­vi­sion gov­ern­ing the pro­tec­tion of the per­son from vi­ol­ence, threats or har­ass­ment ap­plies mu­tatis mutandis.²¹¹

¹ At the re­quest of one spouse, the court de­term­ines the amounts to be paid for the main­ten­ance of the fam­ily.

² Like­wise, at the re­quest of one spouse, it de­term­ines the al­low­ance pay­able to the spouse who looks after the house­hold, cares for the chil­dren or sup­ports the oth­er’s ca­reer or busi­ness.

³ Pay­ments may be claimed for the fu­ture and for one year pre­ced­ing the re­quest.

¹ If a spouse ex­ceeds his or her power to rep­res­ent the mar­it­al uni­on or proves in­cap­able of ex­er­cising it, at the oth­er spouse’s re­quest the court may re­voke such power in whole or in part.

² The spouse mak­ing such re­quest may in­form third parties of the re­voc­a­tion only by com­mu­nic­a­tions in per­son.

³ The re­voc­a­tion is ef­fect­ive to­wards third parties act­ing in good faith only if it has been made pub­lic by or­der of the court.

A spouse is en­titled to sus­pend the joint house­hold for as long as his or her per­son­al­ity rights or fin­an­cial se­cur­ity or the wel­fare of the fam­ily are ser­i­ously en­dangered by liv­ing to­geth­er.

¹ If the sus­pen­sion of the joint house­hold is jus­ti­fied, at the re­quest of one spouse the court will:

1.²¹²

de­term­ine the main­ten­ance paid to any chil­dren and the oth­er spouse;

2.

is­sue dir­ec­tions on the use of the home and the house­hold ef­fects;

3.

or­der a sep­ar­a­tion of prop­erty where jus­ti­fied in the cir­cum­stances.

² A spouse may also make such re­quest if liv­ing to­geth­er is im­possible, in par­tic­u­lar be­cause the oth­er spouse re­fuses to do so without good cause.

³ If the spouses have minor chil­dren, the court must take the ne­ces­sary steps in ac­cord­ance with the pro­vi­sions gov­ern­ing the leg­al ef­fects of the par­ent-child re­la­tion­ship.²¹³

The pro­vi­sions gov­ern­ing en­force­ment as­sist­ance and ad­vance pay­ments on di­vorce and con­sequent to the par­ent-child re­la­tion­ship ap­ply.

If a spouse fails to ful­fil his or her duty to main­tain the fam­ily, the court may or­der his or her debt­ors to make pay­ment in full or in part to the oth­er spouse.

¹ To the ex­tent re­quired to en­sure the fam­ily’s fin­an­cial se­cur­ity or ful­fil­ment of a fin­an­cial ob­lig­a­tion arising from the mar­it­al uni­on, at the re­quest of one spouse the court may make the power to dis­pose of cer­tain as­sets con­di­tion­al on its con­sent.

² The court or­ders the ap­pro­pri­ate pro­tect­ive meas­ures.

³ If it pro­hib­its a spouse from dis­pos­ing of land it must have a note to this ef­fect re­cor­ded in the land re­gister.

¹ If there is a change in cir­cum­stances, at the re­quest of either spouse the court shall modi­fy the meas­ures or re­voke the same if they are no longer jus­ti­fied. The pro­vi­sions on a change of cir­cum­stances in di­vorce cases ap­ply mu­tatis mutandis.²¹⁸

² If the spouses re­sume liv­ing to­geth­er, the meas­ures ordered in con­nec­tion with liv­ing apart lapse, with the ex­cep­tion of the sep­ar­a­tion of prop­erty and the child pro­tec­tion meas­ures.

Spouses are sub­ject to the pro­vi­sions gov­ern­ing par­ti­cip­a­tion in ac­quired prop­erty provided they have not agreed oth­er­wise in a mar­it­al agree­ment and provided no ex­traordin­ary mar­it­al prop­erty re­gime has come in­to ef­fect.

¹ A mar­it­al agree­ment may be con­cluded be­fore or after the wed­ding.

² The pro­spect­ive spouses or the spouses may choose, set aside or modi­fy their mar­it­al prop­erty re­gime only with­in the lim­its of the law.²²¹

¹ A per­son wish­ing to enter in­to a mar­it­al agree­ment must have ca­pa­city of judge­ment.

² Minors, or adults sub­ject to a deputy­ship that cov­ers the con­clu­sion of a mar­it­al agree­ment re­quire the con­sent of their leg­al rep­res­ent­at­ive.²²²

The mar­it­al agree­ment must be ex­ecuted as a pub­lic deed and signed by the parties and, where ap­plic­able, by the leg­al rep­res­ent­at­ive.

¹ At the re­quest of one spouse, the court shall or­der a sep­ar­a­tion of prop­erty where there is good cause to do so.

² In par­tic­u­lar, good cause ex­ists:

1.

if the oth­er spouse is over­indebted or his or her share of the com­mon prop­erty has been dis­trained;

2.

if the oth­er spouse is en­dan­ger­ing the in­terests of the ap­plic­ant or of the mar­it­al uni­on;

3.

if the oth­er spouse un­reas­on­ably with­holds the con­sent re­quired for the dis­pos­al of com­mon prop­erty;

4.

if the oth­er spouse re­fuses to provide the ap­plic­ant with in­form­a­tion con­cern­ing his or her in­come, as­sets and debts or con­cern­ing com­mon prop­erty;

5.

if the oth­er spouse per­man­ently lacks ca­pa­city of judge­ment.

³ Where a spouse per­man­ently lacks ca­pa­city of judge­ment, his or her leg­al rep­res­ent­at­ive may like­wise re­quest sep­ar­a­tion of prop­erty for this reas­on.

¹ The spouses may at any time re­in­state their pre­vi­ous mar­it­al prop­erty re­gime or im­ple­ment a new one by mar­it­al agree­ment.

² If the reas­on for the sep­ar­a­tion of prop­erty no longer ex­ists, at the re­quest of one spouse the court may dir­ect that the pre­vi­ous mar­it­al prop­erty re­gime be re­in­stated.

If a spouse liv­ing un­der the com­munity of prop­erty re­gime is de­clared bank­rupt, sep­ar­a­tion of prop­erty takes ef­fect ex of­fi­cio.

If a spouse liv­ing un­der the com­munity of prop­erty re­gime is pur­sued for a per­son­al debt and his or her share of the com­mon prop­erty is dis­trained, the debt en­force­ment su­per­vis­ory au­thor­ity may re­quest that the court or­der a sep­ar­a­tion of prop­erty.

¹ The re­quest is dir­ec­ted against both spouses.

² ...²²⁵

¹ If the cred­it­ors have been sat­is­fied, at the re­quest of one spouse the court may or­der the res­tor­a­tion of the com­munity of prop­erty re­gime.

² By mar­it­al agree­ment, the spouses may opt for the par­ti­cip­a­tion in ac­quired prop­erty re­gime.

Whenev­er the sep­ar­a­tion of prop­erty re­gime comes in­to ef­fect, the li­quid­a­tion of the pre­vi­ous re­gime is gov­erned by the pro­vi­sions ap­plic­able to the lat­ter, un­less the law provides oth­er­wise.

¹ The es­tab­lish­ment, vari­ation or li­quid­a­tion of a mar­it­al prop­erty re­gime may not have the ef­fect of re­leas­ing an as­set with which one of the spouses or the mar­it­al uni­on had hitherto been li­able to cred­it­ors from such li­ab­il­ity.

² If such an as­set has been trans­ferred to the oth­er spouse, the lat­ter must pay the debt but may be re­leased from such li­ab­il­ity to the ex­tent that he or she may prove that the as­set re­ceived is worth less than the debt.

¹ Where one spouse ex­pressly or ta­citly en­trusts man­age­ment of his or her as­sets to the oth­er, the pro­vi­sions gov­ern­ing agency ap­ply un­less oth­er­wise agreed.

² The pro­vi­sions gov­ern­ing set­tle­ment of debts between spouses are re­served.

¹ Each spouse may at any time re­quire the oth­er’s co­oper­a­tion in draw­ing up an in­vent­ory of their joint as­sets in the form of a pub­lic deed.

² Such an in­vent­ory is deemed ac­cur­ate if made with­in one year of the in­clu­sion of such as­sets un­der the re­gime.

The mar­it­al prop­erty re­gime of par­ti­cip­a­tion in ac­quired prop­erty com­prises the prop­erty ac­quired dur­ing the mar­riage and the in­di­vidu­al prop­erty of each spouse.

¹ Ac­quired prop­erty com­prises those as­sets which a spouse has ac­quired for valu­able con­sid­er­a­tion dur­ing the mar­it­al prop­erty re­gime.

² In par­tic­u­lar, the ac­quired prop­erty of a spouse com­prises:

1.

the pro­ceeds from his or her em­ploy­ment;

2.

be­ne­fits re­ceived from staff wel­fare schemes, so­cial se­cur­ity and so­cial wel­fare in­sti­tu­tions;

3.

com­pens­a­tion for in­ab­il­ity to work;

4.

in­come de­rived from his or her own prop­erty;

5.

prop­erty ac­quired to re­place ac­quired prop­erty.

By op­er­a­tion of law, a spouse’s in­di­vidu­al prop­erty com­prises:

1.

per­son­al ef­fects used ex­clus­ively by that spouse;

2.

as­sets be­long­ing to one spouse at the be­gin­ning of the mar­it­al prop­erty re­gime or ac­quired later at no cost by in­her­it­ance or oth­er­wise;

3.

claims for sat­is­fac­tion;

4.

ac­quis­i­tions that re­place in­di­vidu­al prop­erty.

¹ Un­der a mar­it­al agree­ment, spouses may de­clare ac­quired prop­erty to be in­di­vidu­al prop­erty set aside for pro­fes­sion­al or busi­ness use.

² Fur­ther­more, spouses may stip­u­late in a mar­it­al agree­ment that in­come from in­di­vidu­al prop­erty does not qual­i­fy as ac­quired prop­erty.

¹ Any per­son who as­serts that a spe­cif­ic ob­ject or as­set is owned by one or oth­er spouse bears the bur­den of proof.

² If no such proof may be ad­duced, the ob­ject or as­set is pre­sumed to be in the co-own­er­ship of both spouses.

³ Un­til proven oth­er­wise, all as­sets of a spouse are deemed to be ac­quired prop­erty.

¹ With­in the lim­its of the law, each spouse ad­min­is­ters and en­joys the be­ne­fits of his or her in­di­vidu­al prop­erty and has power of dis­pos­al over it.

² If an as­set is in the co-own­er­ship of both spouses, neither spouse may dis­pose of his or her share in it without the oth­er’s con­sent, un­less oth­er­wise agreed.

Each spouse is li­able for his or her debts with all his or her prop­erty.

¹ The mar­it­al prop­erty re­gime does not af­fect the ma­tur­ity of debts con­trac­ted between spouses.

² However, if pay­ment of debts or the resti­tu­tion of ob­jects owed by a spouse would cause him or her ser­i­ous dif­fi­culties which might en­danger the mar­it­al uni­on, such spouse may re­quest a time lim­it with­in which to sat­is­fy the claim; the claim is to be se­cured where reas­on­able in the cir­cum­stances.

¹ The mar­it­al prop­erty re­gime is dis­solved on the death of a spouse or on im­ple­ment­a­tion of a dif­fer­ent re­gime.

² In the case of di­vorce, sep­ar­a­tion, an­nul­ment of the mar­riage or a court or­der for sep­ar­a­tion of prop­erty, the dis­sol­u­tion of the mar­it­al prop­erty re­gime takes ret­ro­act­ive ef­fect as of the date on which the ap­plic­a­tion was filed.

¹ Each spouse shall take back any of his or her prop­erty that is in the oth­er’s pos­ses­sion.

² Where one spouse shows an over­rid­ing in­terest in gain­ing sole pos­ses­sion of an ob­ject or as­set in co-own­er­ship, and not­with­stand­ing any oth­er leg­al meas­ures avail­able, he or she may re­quest that said ob­ject or as­set be al­loc­ated to him or her in re­turn for com­pens­a­tion.

³ The spouses settle their debts to each oth­er.

¹ Where a spouse has con­trib­uted to the ac­quis­i­tion, im­prove­ment or pre­ser­va­tion of an as­set be­long­ing to the oth­er without re­ceiv­ing equi­val­ent com­pens­a­tion, and where at the time of the li­quid­a­tion that as­set has in­creased in value, then his or her claim cor­res­ponds to his or her pro­por­tion­ate con­tri­bu­tion and is cal­cu­lated ac­cord­ing to the cur­rent value of the as­set; if, con­versely, the as­set has de­creased in value, his or her claim cor­res­ponds to the ori­gin­al con­tri­bu­tion.

² If such an as­set had already been ali­en­ated be­fore­hand, the claim is cal­cu­lated ac­cord­ing to the pro­ceeds ob­tained and is due im­me­di­ately.

³ By writ­ten agree­ment, spouses may ex­clude par­ti­cip­a­tion in the in­creased value or vary the pro­por­tion there­of.

¹ The prop­erty ac­quired dur­ing mar­riage and the in­di­vidu­al prop­erty of each spouse are sep­ar­ated ac­cord­ing to their value at the time of the dis­sol­u­tion of the mar­it­al prop­erty re­gime.

² Lump sum pen­sion or in­valid­ity be­ne­fits re­ceived by a spouse are ad­ded to his or her in­di­vidu­al prop­erty in an amount equi­val­ent to the present value of the pen­sion or in­valid­ity an­nu­ity to which he or she would be en­titled on dis­sol­u­tion of the mar­it­al prop­erty re­gime.

¹ The fol­low­ing are ad­ded to the prop­erty ac­quired dur­ing mar­riage:

1.

the value of dis­pos­i­tions made without con­sid­er­a­tion by one spouse without the oth­er’s con­sent dur­ing the five years pre­ced­ing the dis­sol­u­tion of the mar­it­al prop­erty re­gime, save for the usu­al oc­ca­sion­al gifts;

2.

the value of as­sets dis­posed of by one spouse dur­ing the mar­it­al prop­erty re­gime with the in­ten­tion of di­min­ish­ing the oth­er’s share.

² ...²²⁷

¹ Where debts in­curred in con­nec­tion with ac­quired prop­erty have been paid out of in­di­vidu­al prop­erty or where debts in­curred in con­nec­tion with in­di­vidu­al prop­erty have been paid out of ac­quired prop­erty, there is a claim for com­pens­a­tion when the mar­it­al prop­erty re­gime is li­quid­ated.

² A debt en­cum­bers the prop­erty in re­la­tion to which it was in­curred, and in the event of doubt, it en­cum­bers the ac­quired prop­erty.

³ If as­sets be­long­ing to one cat­egory of prop­erty have con­trib­uted to the ac­quis­i­tion, im­prove­ment or pre­ser­va­tion of as­sets be­long­ing to the oth­er and if the value of the lat­ter has in­creased or di­min­ished, the claim for com­pens­a­tion cor­res­ponds to the pro­por­tion­ate con­tri­bu­tion made and is cal­cu­lated ac­cord­ing to the value of the as­sets at the time of the li­quid­a­tion or their dis­pos­al.

¹ The re­main­ing total value of the ac­quired prop­erty, in­clud­ing the as­sets ad­ded in and claims for com­pens­a­tion, and after de­duc­tion of the debts en­cum­ber­ing the ac­quired prop­erty, con­sti­tutes the sur­plus.

² A de­fi­cit is dis­reg­arded.

For the pur­pose of li­quid­at­ing the mar­it­al prop­erty re­gime, as­sets are stated at their mar­ket value.

¹ An ag­ri­cul­tur­al en­ter­prise which one spouse con­tin­ues to op­er­ate as own­er or in re­spect of which the sur­viv­ing spouse or one of the is­sue makes a jus­ti­fied claim for un­di­vided al­loc­a­tion is stated at its cap­it­al­ised value when cal­cu­lat­ing the pro­por­tion­ate ad­ded value and the claim for par­ti­cip­a­tion.

² The own­er of the ag­ri­cul­tur­al en­ter­prise or his or her heirs may bring a claim against the oth­er spouse for pro­por­tion­ate ad­ded value or par­ti­cip­a­tion only in the amount they would re­ceive if the busi­ness were stated at its mar­ket value.

³ The in­her­it­ance law pro­vi­sions gov­ern­ing valu­ation and the par­ti­cip­a­tion of co-heirs in the profit ap­ply mu­tatis mutandis.

¹ The al­loc­a­tion value may be in­creased by a suit­able amount if jus­ti­fied by spe­cial cir­cum­stances.

² Spe­cial cir­cum­stances in­clude in par­tic­u­lar the main­ten­ance re­quire­ments of the sur­viv­ing spouse, the pur­chase price of the ag­ri­cul­tur­al en­ter­prise in­clud­ing cap­it­al in­vest­ments, and the fin­an­cial cir­cum­stances of the spouse to whom the ag­ri­cul­tur­al en­ter­prise be­longs.

¹ For the pur­pose of valu­ing the ac­quired prop­erty at hand at the time of the dis­sol­u­tion of the mar­it­al prop­erty re­gime, the de­fin­ing junc­ture is the time of the di­vi­sion.

² For as­sets ad­ded to the ac­quired prop­erty, the de­fin­ing junc­ture is the date on which they were ali­en­ated.

¹ Each spouse or his or her heirs is or are en­titled to one-half of the sur­plus of the oth­er spouse.

² The claims are set off.

¹ A dif­fer­ent share of the sur­plus may be agreed by mar­it­al agree­ment.

² The share of the sur­plus al­loc­ated that ex­ceeds one half shall not be in­cluded when cal­cu­lat­ing the stat­utory en­ti­tle­ments of the sur­viv­ing spouse or re­gistered part­ner, his or her com­mon is­sue and the is­sue of those chil­dren.²²⁸

³ Such an agree­ment must not ad­versely af­fect the right to claim the stat­utory en­ti­tle­ment held by chil­dren who are not the com­mon is­sue of the spouses or those of the is­sue of such chil­dren.²²⁹

¹ In the case of di­vorce, sep­ar­a­tion, an­nul­ment of mar­riage or sep­ar­a­tion of prop­erty by court or­der, agree­ments vary­ing the stat­utory share of the sur­plus are val­id only if the mar­it­al prop­erty agree­ment ex­pressly so provides.

² This also ap­plies on the dis­sol­u­tion of the mar­it­al prop­erty re­gime by death when di­vorce pro­ceed­ings are pending if that res­ults in the sur­viv­ing spouse los­ing his or her right to claim the stat­utory en­ti­tle­ment.²³⁰

¹ If im­me­di­ate pay­ment of the par­ti­cip­a­tion claim and the share of the in­creased value would cause ser­i­ous dif­fi­culties for the debt­or, he or she may re­quest a de­fer­ral.

² Un­less oth­er­wise agreed by the spouses, the par­ti­cip­a­tion claim and the share of the in­creased value bear in­terest as of com­ple­tion of the di­vi­sion of prop­erty and, where jus­ti­fied in the cir­cum­stances, se­cur­ity must be fur­nished.

¹ To en­sure that the sur­viv­ing spouse may main­tain his or her ac­cus­tomed life­style, at his or her re­quest he or she will be gran­ted a usu­fruct of or a right of res­id­ence in the home in which the spouses lived and which be­longed to the de­ceased spouse, and this will be set off against his or her en­ti­tle­ment, sub­ject to any con­trary pro­vi­sion in the mar­it­al agree­ment.

² On the same con­di­tions, he or she may re­quest that own­er­ship of the house­hold ef­fects be trans­ferred to him or her.

³ Where jus­ti­fied in the cir­cum­stances, at the re­quest of the sur­viv­ing spouse or the oth­er leg­al heirs of the de­ceased spouse, own­er­ship of the home may be gran­ted rather than a usu­fruct or right of res­id­ence.

⁴ The sur­viv­ing spouse may not claim such rights in re­spect of premises in which the de­ceased prac­tised a pro­fes­sion or ran a busi­ness and which are re­quired by one of his or her is­sue in or­der to con­tin­ue said pro­fes­sion or busi­ness, sub­ject to the pro­vi­sions of ag­ri­cul­tur­al in­her­it­ance law.

¹ If the as­sets of the debt­or or his or her es­tate are in­suf­fi­cient to cov­er the par­ti­cip­a­tion claim on di­vi­sion of the prop­erty, the en­titled spouse or his or her heirs may de­mand from third-party be­ne­fi­ciar­ies the re­turn of such dis­pos­i­tions as are to be ad­ded to the ac­quired prop­erty up to the amount of the short­fall.

² The right to bring a claim is ex­tin­guished one year after the spouse or his or her heirs learn of the in­fringe­ment of their rights, but in any event ten years after the dis­sol­u­tion of the mar­it­al prop­erty re­gime.

³ Moreover, the pro­vi­sions gov­ern­ing claims in abate­ment un­der in­her­it­ance law ap­ply mu­tatis mutandis.²³¹

The mar­it­al prop­erty re­gime of com­munity of prop­erty com­prises the com­mon prop­erty and the in­di­vidu­al prop­erty of each spouse.

¹ The gen­er­al com­munity of prop­erty com­bines the as­sets and in­come of the spouses in­to com­mon prop­erty, with the ex­cep­tion of those as­sets which by law con­sti­tute in­di­vidu­al prop­erty.

² The com­mon prop­erty be­longs to both spouses jointly.

³ Neither spouse is en­titled to dis­pose of his or her share of the com­mon prop­erty.

¹ By mar­it­al agree­ment, the spouses may re­strict com­munity of prop­erty to the prop­erty ac­quired dur­ing mar­riage.

² Rev­en­ue from in­di­vidu­al prop­erty be­comes com­mon prop­erty.

¹ By mar­it­al agree­ment, the spouses may ex­clude from the com­munity of prop­erty spe­cif­ic as­sets or types of as­sets, such as land, a spouse’s in­come from work or as­sets used to prac­tise a pro­fes­sion or run a busi­ness.

² Un­less oth­er­wise agreed, in­come from such as­sets does not be­come com­mon prop­erty.

¹ In­di­vidu­al prop­erty may be cre­ated by mar­it­al agree­ment, dis­pos­i­tions by third parties or by law.

² By law, items for the ex­clus­ive per­son­al use of a spouse and claims for sat­is­fac­tion con­sti­tute in­di­vidu­al prop­erty.

³ A spouse’s right to claim the stat­utory en­ti­tle­ment may not pass to him or her from his or her re­l­at­ives as in­di­vidu­al prop­erty where the mar­it­al agree­ment provides that such as­sets are com­mon prop­erty.

All as­sets are pre­sumed to be com­mon prop­erty un­less proven to be the in­di­vidu­al prop­erty of a spouse.

¹ The spouses must man­age the com­mon prop­erty in the best in­terests of the mar­it­al uni­on.

² With­in the lim­its of every­day house­keep­ing, each spouse may in­cur com­mit­ments on be­half of the mar­it­al uni­on and dis­pose of com­mon prop­erty.

¹ Out­side the lim­its of every­day house­keep­ing, the spouses may in­cur com­mit­ments on be­half of the com­mon prop­erty and dis­pose there­of only jointly or in­di­vidu­ally with the oth­er’s con­sent.

² Third parties are en­titled to pre­sume such con­sent provided they do not know or can­not be ex­pec­ted to know that it is ab­sent.

³ The pro­vi­sions gov­ern­ing rep­res­ent­a­tion of the mar­it­al uni­on are re­served.

If a spouse prac­tises a pro­fes­sion or runs a busi­ness on his or her own us­ing com­mon prop­erty with the oth­er’s con­sent, he or she may con­clude all trans­ac­tions that such activ­it­ies en­tail.

¹ Without the oth­er’s con­sent, a spouse is not en­titled to re­nounce an in­her­it­ance which would be­come com­mon prop­erty or ac­cept in­her­it­ance of an over­indebted es­tate.

² If the spouse is un­able to ob­tain con­sent or if it is with­held without good cause, he or she may pe­ti­tion the court.²³²

¹ In re­la­tion to deal­ings con­cern­ing com­mon prop­erty, on dis­sol­u­tion of the mar­it­al prop­erty re­gime, each spouse is li­able as if he or she were an agent.

² The costs of man­age­ment are borne by the com­mon prop­erty.

¹ Each spouse ad­min­is­ters and dis­poses of his or her in­di­vidu­al prop­erty with­in the lim­its of the law.

² If in­come ac­crues to in­di­vidu­al prop­erty, the man­age­ment costs are borne by such prop­erty.

Each spouse is li­able with his or her in­di­vidu­al prop­erty and the com­mon prop­erty:

1.

for debts in­curred in ex­er­cising his or her powers to rep­res­ent the mar­it­al uni­on or in man­aging the com­mon prop­erty;

2.

for debts in­curred in the pur­suit of a pro­fes­sion or busi­ness, provided com­mon prop­erty has been used for this or the in­come there­from be­comes com­mon prop­erty;

3.

for debts for which the oth­er spouse is also per­son­ally li­able;

4.

for debts in re­spect of which the spouses have agreed with third parties that their com­mon prop­erty as well as the debt­or’s in­di­vidu­al prop­erty will be li­able.

¹ For all oth­er debts a spouse is li­able only to the ex­tent of his or her in­di­vidu­al prop­erty and half the value of the com­mon prop­erty.

² Claims arising from the un­just en­rich­ment of the mar­it­al uni­on are re­served.

¹ The mar­it­al prop­erty re­gime does not af­fect the ma­tur­ity of debts con­trac­ted between spouses.

² However, if pay­ment of debts or the resti­tu­tion of ob­jects owed by a spouse would cause him or her ser­i­ous dif­fi­culties which might en­danger the mar­it­al uni­on, such spouse may re­quest to be gran­ted a time lim­it in which to sat­is­fy the claim; the claim is to be se­cured where reas­on­able in the cir­cum­stances.

¹ The mar­it­al prop­erty re­gime is dis­solved on the death of a spouse, the im­ple­ment­a­tion of a dif­fer­ent re­gime or when one of the spouses is de­clared bank­rupt.

² In the case of di­vorce, sep­ar­a­tion, an­nul­ment of the mar­riage or a court or­der for sep­ar­a­tion of prop­erty, the dis­sol­u­tion of the mar­it­al prop­erty re­gime takes ret­ro­act­ive ef­fect as of the date on which the ap­plic­a­tion was filed.

³ When de­term­in­ing the com­pos­i­tion of com­mon prop­erty and in­di­vidu­al prop­erty, the de­fin­ing junc­ture is the dis­sol­u­tion of the mar­it­al prop­erty re­gime.

Lump sum pen­sion or in­valid­ity be­ne­fits re­ceived by a spouse that have be­come com­mon prop­erty are ad­ded to his or her in­di­vidu­al prop­erty in the cap­it­al­ised amount equi­val­ent to the pen­sion or in­valid­ity an­nu­ity to which he or she would be en­titled on dis­sol­u­tion of the mar­it­al prop­erty re­gime.

¹ Where debts en­cum­ber­ing one cat­egory of prop­erty were paid out of as­sets be­long­ing to the oth­er, re­spect­ive com­pens­a­tion claims between the com­mon prop­erty and the in­di­vidu­al prop­erty of each spouse arise on the dis­sol­u­tion of the mar­it­al prop­erty re­gime.

² A debt en­cum­bers the prop­erty in re­la­tion to which it was in­curred, but in the case of doubt it en­cum­bers the com­mon prop­erty.

Where the in­di­vidu­al prop­erty of a spouse or the com­mon prop­erty has con­trib­uted to the ac­quis­i­tion, im­prove­ment or pre­ser­va­tion of an as­set be­long­ing to an­oth­er cat­egory of prop­erty, the pro­vi­sions gov­ern­ing in­creased value in re­la­tion to par­ti­cip­a­tion in ac­quired prop­erty ap­ply mu­tatis mutandis.

For the pur­pose of valu­ing the com­mon prop­erty at hand at the time of the dis­sol­u­tion of the mar­it­al prop­erty re­gime, the de­fin­ing junc­ture is the time of the di­vi­sion.

¹ If the com­munity of prop­erty re­gime is dis­solved by the death of a spouse or the im­ple­ment­a­tion of a dif­fer­ent mar­it­al prop­erty re­gime, each party or his or her heirs is en­titled to one-half of the com­mon prop­erty.

² A dif­fer­ent meth­od of di­vi­sion may be agreed by mar­it­al agree­ment.

³ Such agree­ments must not ad­versely af­fect the right to claim the stat­utory en­ti­tle­ments of the spouse’s is­sue.

⁴ Un­less there is an in­struc­tion to the con­trary in the mar­it­al agree­ment, agree­ments on a dif­fer­ent meth­od of di­vi­sion do not ap­ply on the death of a spouse when di­vorce pro­ceed­ings are pending that res­ults in the sur­viv­ing spouse los­ing his or her right to claim the stat­utory en­ti­tle­ment.²³³

¹ On di­vorce, sep­ar­a­tion, an­nul­ment of the mar­riage or sep­ar­a­tion of prop­erty by law or court or­der, each spouse shall take back from the com­mon prop­erty such prop­erty as would have been his or her in­di­vidu­al prop­erty un­der the par­ti­cip­a­tion in ac­quired prop­erty re­gime.

² The re­main­ing com­mon prop­erty is di­vided equally between the spouses.

³ Agree­ments to vary the stat­utory meth­od of di­vi­sion are val­id only if the mar­it­al agree­ment ex­pressly so provides.

If the com­munity of prop­erty is dis­solved by the death of a spouse, the sur­viv­ing spouse may re­quest that such prop­erty as would have been his or her in­di­vidu­al prop­erty un­der the par­ti­cip­a­tion in ac­quired prop­erty re­gime be al­loc­ated to him or her and count to­ward his or her share of the es­tate.

¹ If the home in which the spouses lived or any house­hold ef­fects be­long to the com­mon prop­erty, the sur­viv­ing spouse may re­quest that such prop­erty be al­loc­ated to him or her and count to­ward his or her share of the es­tate.

² Where jus­ti­fied in the cir­cum­stances, at the re­quest of the sur­viv­ing spouse or the oth­er leg­al heirs of the de­ceased spouse, a usu­fruct or right of res­id­ence may be gran­ted in lieu of own­er­ship.

³ If the com­munity of prop­erty is not dis­solved by death, each spouse may make such re­quests where he or she may show an over­rid­ing in­terest.

If a spouse demon­strates an over­rid­ing in­terest, he or she may also de­mand that oth­er as­sets be al­loc­ated to him or her and count to­ward his or her share.

In oth­er re­spects the pro­vi­sions gov­ern­ing the di­vi­sion of prop­erty in co-own­er­ship and the di­vi­sion of es­tates ap­ply mu­tatis mutandis.

With­in the lim­its of the law, each spouse shall ad­min­is­ter and en­joy the be­ne­fits of his or her own prop­erty and has power of dis­pos­al over it.

¹ Any per­son who as­serts that a spe­cif­ic ob­ject or as­set is owned by one or oth­er spouse bears the bur­den of proof.

² If no such proof may be ad­duced, there is a pre­sump­tion of co-own­er­ship.

Each spouse is li­able for his or her debts with all his or her prop­erty.

¹ The mar­it­al prop­erty re­gime does not af­fect the ma­tur­ity of debts con­trac­ted between spouses.

² However, if pay­ment of debts or the resti­tu­tion of ob­jects owed by a spouse would cause him or her ser­i­ous dif­fi­culties which might en­danger the mar­it­al uni­on, such spouse may re­quest to be gran­ted a time lim­it in which to sat­is­fy the claim; the claim is to be se­cured where reas­on­able in the cir­cum­stances.

Where one spouse shows an over­rid­ing in­terest in gain­ing sole pos­ses­sion of an ob­ject or as­set in co-own­er­ship, and not­with­stand­ing any oth­er leg­al meas­ures avail­able, he or she may re­quest that said ob­ject or as­set be al­loc­ated to him or her in re­turn for com­pens­a­tion.