Separation in cohabitation

Introduction

Couples who live together without being married or in a registered partnership are said to be cohabiting (also known as non-marital cohabitation). Cohabitation is becoming increasingly common: since the 1950s and 1960s, the appeal of marriage has declined, while social acceptance of diverse family models such as cohabitation has increased. Despite this development, cohabitation has not yet been codified in civil law and therefore, strictly speaking, does not constitute an institution of family law. Rather, it is a de facto relationship to which case law attaches certain legal effects.

In the absence of specific provisions, the general principles and norms of private law apply, in particular those of the law governing simple partnerships (Art. 530 ff. OR). Those who separate while cohabiting therefore often face very practical but legally delicate questions.

Termination of cohabitation

The lack of legal regulation of cohabitation means that either partner can terminate the cohabitation at any time and without formalities, with or without the consent of the other.

Property settlement

The division of household goods and property can prove difficult after the termination of cohabitation. In the absence of specific legal provisions, the general provisions of civil law apply (by analogy) to the division of property.

Since cohabitation has no direct impact on ownership, each cohabiting partner generally receives back what they contributed. If ownership of an item is disputed, for example because both partners contributed to it, the presumption of co-ownership applies in accordance with Art. 646 para. 2 of the Swiss Civil Code. If one partner takes possession of such an item, the other partner may be entitled to compensation. If no agreement can be reached, the court will decide in the event of a dispute. It is therefore advisable to draw up an inventory of the items contributed during the cohabitation.

Maintenance and assistance claims

After the cohabitation has ended, there are no legal maintenance claims against the former partner. However, cohabiting partners are free to agree contractually on a maintenance obligation in the event of separation.

Living arrangements

Issues relating to residential rights are also governed by the general rules of civil law. If the cohabiting partners have signed a joint tenancy agreement, the tenancy can only be terminated jointly. If one party was already the sole tenant before the cohabitation, the tenancy agreement remains assigned to that party even after the cohabitation has ended and is not affected by the separation.

Joint children

The provisions of child law apply regardless of the marital status of the parents and therefore also apply to joint children of cohabiting partners. There is therefore little scope for regulation in matters concerning children. If the parents have joint custody, the separation of the cohabiting partners does not change this.

Conclusion & contractual options

Precisely because cohabitation is hardly regulated by law, it may be advisable to consider concluding a written cohabitation agreement in order to avoid later disputes. This agreement can regulate the consequences of a separation in advance. Concluding a cohabitation agreement is particularly advisable if one partner is financially dependent on the other or if the parties wish to secure their financial situation in general.

After the separation, it is possible to conclude a written dissolution agreement, provided that the cohabiting partners can reach an agreement. Such an agreement serves to legally secure the agreement reached, for example with regard to the division of assets, and can be drawn up by a solicitor.