Divorce: who keeps the house, who is paid out?

The law does not force a sale to an outside buyer. Both spouses may co-own the house (Miteigentum). Then the side with the greater interest can ask for it whole, against compensation.¹ If only one spouse owns the house, the court can grant the other a time-limited right of residence. The condition: they depend on the home because of the children or for other important reasons. This comes against compensation or is offset against maintenance. It is not ownership, nor a long-term guarantee.¹

This is not a licence against every sale, though. If the co-owners cannot agree on ending the co-ownership, the court first orders a physical split. If that is not possible without a substantial loss of value, the house is auctioned, publicly or between the two co-owners.¹ The law does not define what counts as the «greater interest».

What this means for you: either way, you need the same written review of the house’s value for both sides.

Without a marriage contract, the default regime applies: Errungenschaftsbeteiligung, Switzerland’s standard marital property regime. A house paid for with earned income counts as an acquisition. It is not the house itself that is divided, but the Vorschlag: the net value of the acquisitions after debts.² Each side then gets half of this as a money claim, not co-ownership of the house.²

What a spouse already owned before the marriage, or inherited, stays their own property (Eigengut) and is not divided.² What counts for the value of the house is not the day of separation. It is the time of the actual settlement – in court proceedings, the day of the judgment.³ This can differ noticeably in a long, contested divorce.

What this means for you: the calculation starts from the market value, deducts the mortgage, and splits the rest equally. A later tax on a future sale, not yet due, also reduces this value, at the court’s discretion.⁵ The example below shows the sums with round figures, without this tax.

Being registered in the land register (Grundbuch) proves ownership, unless someone proves otherwise.⁶ This presumption only works in favour of the person actually registered. If only one spouse is registered, the house remains their property all the same.

For the divorce, something else counts: the value of the house belongs to the registered person’s acquisitions. This stands until the opposite, separate property, is proven.⁶ The other side receives half of the Vorschlag from this as a monetary claim – not ownership of the house itself.² Even during an intact marriage, the family home cannot be sold without the other spouse’s express consent. This holds regardless of the land register.⁶

What this means for you: who is registered decides who owns the house. It does not, on its own, decide how the value is split under matrimonial property law. For that, you need the same independent review of the house’s value for both sides.

Gifting the family home to the children also needs the other spouse’s express consent during the marriage.⁶ Without that consent, a free transfer to the children counts as a gift. Its value is added back into their acquisitions if this happens within the five years before the marital property regime ends. In a divorce, that is the day the petition was filed.⁷ If the gift was meant to reduce the other side’s claim, this applies for the whole marriage.⁷

The gifting spouse’s assets might not be enough to cover the claim. If so, the entitled side can claim it from the children who received the gift.⁷ The deadline: one year after finding out, at most ten years after the regime ends.

What this means for you: transferring the house to the children does not remove the matrimonial property calculation. It only postpones it. Discuss such a step with a lawyer or notary beforehand, not after it is signed.

A private agreement about the mortgage does not release the other side towards the bank. That takes a contract with the bank (befreiende Schuldübernahme).¹⁰ The law also has a one-year rule. Has the side taking over assumed the mortgage debt? Then the other is released, unless the bank objects in writing within a year.¹⁰ Whether this also ends a separate loan contract is open. Only a written release by the bank is reliable.

Separately, pension fund assets (Pensionskasse) built up during the marriage are split equally: the pension equalisation (Vorsorgeausgleich).⁸ If one side already draws a retirement pension when proceedings start, the court decides at its discretion. The spouses may agree otherwise if both remain adequately provided for.⁸

If a pension fund withdrawal (Vorbezug) was used, it must usually be repaid on sale, capped at the proceeds.⁹ This duty ends once pension fund retirement benefits are due, under some rules already on early retirement.⁹

What this means for you: treat the mortgage and the pension fund as two separate calculations.