During a divorce, whether initiated by one party or by mutual agreement, the division of the 2nd pillar is a point to be determined by the judge, separate from the liquidation of the matrimonial regime. It is therefore important to clearly differentiate the 2nd pillar from the 3rd pillar in case of divorce, as the fate of the latter depends on the matrimonial regime in force during the marriage and will be addressed in the context of the liquidation of the matrimonial regime.
The division of the 2nd pillar is a matter that the judge must examine obligatorily during a divorce, which means it is examined ex officio. Consequently, the judge has complete power of examination on this matter. Therefore, it is essential to provide the judge with all the necessary documents to determine the amount of occupational pension assets accumulated by each spouse during their union in the context of the divorce.
Under Art. 122 CC, it is generally provided that the occupational pension assets accumulated by the spouses during the marriage until the day the divorce is introduced in court should be shared equally. However, there are two exceptions to this rule. The first exception is the possibility for the spouses to agree on a different division, known as the conventional exception. The second exception is based on a decision by the judge.
Exception agreed upon by the spouses
Spouses have the option to waive the rule of equal division of occupational pension assets or to opt for a different division key, higher or lower than half. This decision can be made by the spouses themselves by including a clause to this effect in their divorce agreement.
However, if the spouses decide to waive the equal division of occupational pension assets, they must ensure that the old-age and disability provision for the spouse who should have received a share is sufficient. It is important to note that the adequacy of the provision does not require that each spouse has identical or even comparable pension assets. Thus, the requirement of adequacy of the provision should not be interpreted strictly.
Therefore, it is possible to consider a waiver of the division by the spouses in certain situations, such as a short marriage, a significant age difference between the spouses, or a substantial fortune of one of the spouses. However, it is important to note that if the spouses waive the equal division, the judge may decide not to ratify their agreement and to proceed with a balancing of occupational pension assets.
Exception decided by the judge
The judge has the possibility of awarding a share less than half or even not awarding the exit benefit at all to the creditor spouse for just reasons. If the equal division is inequitable, the judge may deviate from this principle. The just reasons that could lead the judge to deviate from the rule are numerous, such as the result of the liquidation of the matrimonial regime or the economic situation of the spouses after divorce. For example, the judge could refuse the division of the 2nd pillar if one of the economically strong spouses has built up a pension in the form of the 3rd pillar exclusively, which will not be shared in the liquidation of the matrimonial regime, while the other economically weak spouse has a modest 2nd pillar. The judge may also take into account the pension needs of each spouse, particularly considering their age difference. Furthermore, the law allows the judge to award more than half of the exit benefit to the spouse who takes care of the common children after the divorce, to compensate for the pension gap that will continue to widen after the divorce, as one of the spouses will not be able to contribute as much as the other. However, for the judge to decide on this division key, it will be necessary that the debtor spouse still has adequate provision.
In summary, although the division of the 2nd pillar is within the exclusive jurisdiction of the judge, the lawyer must pay particular attention to this question. The division should be considered alongside the liquidation of the matrimonial regime and the maintenance contribution between the spouses, to determine whether it should be carried out according to the rule of equal division or whether it is appropriate to deviate from it. It is also important to emphasize that only the Swiss judge is entitled to decide on the division of the 2nd pillar.