Divorcing with a joint home: what to do if it’s your main residence in Switzerland?

The end of a marriage is an emotionally trying time, when important decisions have to be made – not least what to do with the family home. Should one sell, buy out the other’s share or keep the property? In Switzerland, and particularly in the canton of Vaud, these decisions have important legal and financial consequences. This article guides you through the main options, the legal obligations and the steps you need to take to act in a fair and considered manner.

Contents

1. The legal framework: matrimonial property regime and ownership
2. Three main property options
3. Allocation of family home ownership
4. The importance of real estate appraisal
5. In the event of disagreement: the role of the court
6. Tax and financial aspects to consider
7. The right support: a guarantee of peace of mind
8. Conclusion

1. Legal framework: matrimonial property regime and ownership

Before deciding on the fate of the property, it is essential to know the matrimonial property regime chosen at the time of the marriage:

• Participation aux acquêts (ordinary regime): assets acquired during the marriage are shared equally, while own property remains personal.
• Separation of property: each spouse retains full ownership of his or her property. The entry in the Land Register prevails: if the property is registered as 50/50, it will be divided that way, even if the contributions were unequal.
• Community of property: the assets of the spouses form a joint estate to be shared upon divorce.

The matrimonial property regime determines the distribution key, the calculation of the balancing payment (amount paid by one to buy out the other’s share) and the matrimonial property regime liquidation procedures.

2. Three main property options

A. Sell the property

This is the most common solution. It enables the co-ownership to be wound up and the net profit from the sale to be shared. A precise estimate by a professional is essential to set the right price.

You also need to anticipate the tax consequences of property appreciation, which vary according to the length of ownership and the canton.

In the canton of Vaud, the tax can range from 30% for a holding of less than a year to 7% after 24 years (years of own occupation count double).

B. Redemption of the other spouse’s share

If one of the spouses wishes to remain in the house, he or she can buy out the other’s share.

• The notary will draw up the deed of transfer and calculate the balance to be paid according to the market value of the property.
• Vaud banks require that the new buyer be able to assume the mortgage debt alone, with charges representing a maximum of 33% of income and a theoretical interest rate of around 6-7%.
• If these conditions are not met, sale remains the only viable solution.

C. Keeping the undivided property

Some ex-spouses decide to remain co-owners for a specific period, in particular to enable their children to maintain their living environment.

This option requires a written indivision agreement, drawn up by a notary, setting out the division of expenses and the terms for leaving indivision.

Without a clear legal framework, this situation can become a source of conflict.

3. Allocation of family home ownership

Even when the home belongs to just one spouse, the court may award it to the other spouse, if it is in the children’s best interests to remain in their environment.

In this way, the owner spouse can be forced to leave the home, while retaining legal ownership.

This right of habitation is limited in time (often until the children reach the age of majority) and does not authorize renting or mortgaging the property. Fair compensation may be fixed or deducted from the maintenance contribution(art. 121 al. 3 CC).

Swiss law provides strong protection for the family home:
“A spouse may not, without the express consent of his or her spouse, sell, terminate the lease or restrict the rights attached to the family home” (art. 169 CC).

This provision illustrates the legislator’s desire to preserve the stability of children and the living environment of the spouse who has custody of them.

4. The importance of property valuation

A reliable valuation of the property is essential to ensure a fair division. It can be carried out by :

• a local broker familiar with the Vaud market,
• a notary,
• or a certified real estate appraiser.

The hedonic method, used by Swiss banks, compares the property with recent sales of similar properties to determine a realistic market value.

This assessment avoids under- or over-valuing the home, and facilitates a balanced agreement between the ex-spouses.

5. In the event of disagreement: the role of the court

If no agreement is reached, the Civil Court intervenes. The judge may :

• allocate the property to one of the spouses demonstrating an overriding interest and sufficient financial capacity,
• or order the forced sale of the property.

These procedures can be long and costly, which is why it’s important to seek an amicable solution with the help of a notary, lawyer and real estate specialist.

6. Tax and financial considerations

There are several costs involved in liquidating a property:

• Taxes on property gains vary according to canton and length of ownership.
• Notary fees and transfer taxes.
• Real estate agency commission, usually 3% of the sale price.
• Mortgage penalties for breach of a fixed-rate loan.

The support of an experienced real estate broker can optimize these costs while securing the transaction.

7. The right support: a guarantee of peace of mind

Divorcing with a shared property is a combination of emotional and financial challenges.

Calling on recognized professionals – notary, family lawyer, real estate broker – is the best way to protect everyone’s interests and avoid costly mistakes.

Conclusion

Selling, buying back or sharing a house in the context of a divorce in Switzerland requires rigor, dialogue and support.

Each situation is unique: the matrimonial regime, the value of the property, resources and family priorities all play a part in determining the best decision.

With a precise assessment and the right advice, it’s possible to transform this difficult period into a constructive transition, enabling everyone to start afresh on a solid footing – both personally and in terms of their assets.

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