Different ownership relationships have different consequences
A property can basically be bought as sole, joint or total property. Depending on the type of ownership, there are different consequences in the event of divorce:
Sole property
The conditions are clear and easy to regulate if only one of the two spouses acquires the property. The buyer is entered in the land register, the spouse's name does not appear at all. So there are no problems with the regulations in the case of divorce. The buyer is solely responsible for the property, which applies to both the legal and the financial side. The divorce does not change the ownership of the property, the buyer remains the sole owner. However, it is up to the divorce judge to give the other partner a right to live. This is usually set for a limited period. If both spouses invested money in the property, they added value. The partner who is not the owner is entitled to half of this added value. The mortgage is usually only in the name of the owner of the property, so there are no problems with a divorce.
Co-owned real estate
The value ratio determines to which parts the property belongs to whom. In the case of co-ownership, both partners own part of the property, whereby the value ratio is based on how much money each partner has contributed. Each partner has the right to freely dispose of his share, whereby the other partner must always be granted the right of first refusal. If one partner wishes to take over the part of the other partner in the event of a divorce, compensation must be paid to the latter. To do this, the market value of the property must be determined.
Total property
When it comes to total ownership, the property belongs to both partners and they can only decide unanimously on how to proceed. Both spouses have an equal say. In the event of a divorce, they must therefore agree on how to proceed with the property; a mediator may have to be consulted.
The profit sharing
The agreed property regime is decisive for the further procedure in the event of a divorce. In the clear majority of cases (approx. 95 percent), the profit sharing applies, in which the added value described above must be shared fairly in the event of a divorce.
The participation in benefits applies automatically unless otherwise agreed upon in the marriage. In the event of a divorce, both spouses share half of their shared achievements, which relates not only to salary, interest and social security contributions, but also to the home they have bought.
But not only the credit is divided fairly, the debts must also be viewed in this way. This means that mortgage debts are also shared 50:50 in the profit sharing scheme. Furthermore, the principle of solidarity applies here: Both parties are liable for the debts, which applies regardless of the respective financial means.
In the event of a divorce, the bank can decide from whom it claims the credit installments and interest owed. Everyone has to stand up for the other.
And the portability calculation?
Anyone who has ever dealt with a mortgage knows the so-called portability regulation. This also plays a role in the case of a divorce, whereby the portability of a partner alone is usually no longer given. In Switzerland, every mortgagee can spend a maximum of one third of their gross household income on housing costs.
If the salary of an individual partner is chosen as the basis, this is much lower and the partner can usually not manage the loan rates alone. This means that he can no longer meet the portability requirements. In the worst case, the mortgage is canceled.
If the two partners find that they are no longer able to carry the mortgage, the question of possible dissolution may arise. But this can be expensive! As in other cases, the bank calculates prepayment interest based on the remaining term of the mortgage and the current interest rate.
This means that there is no precise amount that has to be included in the prepayment penalty. Rather, the penalty fees can vary. Some banks also charge another fee: the liquidation fee. This means that the penalty fees that are payable due to an early termination can amount to several tens of thousands of Swiss francs.
It is therefore advisable to look for other ways to cancel the mortgage. A good tip from the professional: If the property has to be sold, the buyer can take over the mortgage. However, this only applies if the bank also agrees and if the bank considers the buyer's creditworthiness to be sufficient.
Important tips in the event of a divorce
Ideally, the homeowners who still have a mortgage on their house will not divorce. However, because this cannot always be accomplished, precautions should be taken. The following tips will help limit the damage in the event of a divorce:
Short terms
In general, long terms are ideal in view of low interest rates, which will almost certainly not decrease further, but rather will increase. But in the event of a divorce, long terms are very negative because nobody can get out of the contract. Therefore: Considering a possible divorce, short terms are a lot more sensible. The Libor mortgage is highly recommended, as it can only be concluded with a short term anyway. The risk of a forced termination of the mortgage due to lack of money in the event of a divorce is greatly reduced here.
Do not use pension funds
Of course it is possible to finance the mortgage with funds from the pension fund. But if these funds were used when buying the property, they must be returned in the event of a divorce. This in turn means that you first need to have these cash.
Think before
This advice sounds easy, but is often neglected due to the great infatuation. It makes sense to make provisions when times are good and to worry about how things can go on later in the event of a divorce. Document all cash flows so that you can avoid any disputes later. Incidentally, this already applies to the purchase of the property, because even here it should be recorded where the money for the purchase comes from. Intermediate investments should also be precisely documented.
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