Dividing the 2nd pillar in the event of divorce

In the event of divorce, the question of the division of the 2nd pillar is separate from the liquidation of the matrimonial property regime and must be decided by the judge, whether the divorce is requested by one party or amicably.
It is therefore crucial to make a clear distinction between the 2nd pillar and the 3rd pillar, as the fate of the latter will depend on the matrimonial property regime applicable during the marriage and will be dealt with as part of the liquidation of the matrimonial property regime.

The division of the 2nd pillar in a divorce is a matter that must be examined by the judge, which means that it is examined ex officio.
Consequently, the judge has full power of review over this issue.
To determine the amount of pension assets accumulated by each spouse during their union, it is therefore essential to provide the judge with all the necessary documents as part of the divorce proceedings.

Art.
122 CC stipulates that occupational pension assets accumulated by the spouses during their marriage up to the filing of the divorce petition are to be shared equally.
However, there are two exceptions to this rule.
The first is the conventional exception, which allows the spouses to agree on a different division.
The second exception allows the judge to make a different decision based on the particular circumstances of the case.

The exception agreed by the spouses

The spouses have the option of deviating from the one-half rule by agreeing to a different distribution, either higher or lower than the one-half rule.
This possibility, known as a conventional exception, can be implemented by the spouses themselves by inserting a clause to this effect in their divorce agreement.

If the spouses decide to waive the rule of 50/50 sharing of pension assets, they must ensure that the pension and disability assets of the spouse who is to receive a share are adequate.
However, it is important to stress that the adequacy of pension provision does not require each spouse to have identical or comparable pension assets.
Consequently, the requirement of adequacy should not be interpreted strictly.

In certain situations, such as a short marriage, a large age difference between the spouses, or a significant disparity in wealth, the spouses may consider waiving the 50/50 division of pension assets.
However, it should be emphasized that if the spouses waive this rule, the judge may refuse to ratify their agreement and order a balancing of the pension assets.

Exception decided by the judge

The judge may decide not to allocate the termination benefit to the creditor spouse, or to allocate a share of less than half, if there are good reasons for doing so, as provided for in art.
122 para. 2 CC.
In such cases, the judge may depart from the principle of 50/50 distribution of the pension assets.
Reasons may vary, such as the outcome of the liquidation of the matrimonial property regime, or the economic situation of the spouses after the divorce.
For example, if one of the economically strong spouses has built up a pension exclusively in the form of a 3rd pillar, which will therefore not be divided in the liquidation of the matrimonial property regime, while the other economically weaker spouse has a modest 2nd pillar, the judge could refuse to divide the 2nd pillar.

The judge may also take into account the pension needs of each spouse, particularly in view of their age difference.
In addition, the law authorizes the judge to allocate more than half of the termination benefit to the spouse taking care of the joint children after the divorce, in order to make up for the shortfall in pension provision that will continue to grow after the divorce, given that one spouse will not be able to contribute as much as the other.
However, for the judge to be able to opt for this distribution key, the spouse who has to pay a higher share must have sufficient provisions.

In short, even if the division of the 2nd pillar is decided exclusively by the judge, lawyers need to pay particular attention to this issue.
It is important to take the division into account when liquidating the matrimonial property regime and determining the maintenance contribution between the spouses, in order to determine whether to follow the rule of division by half or to deviate from it.
Moreover, it is crucial to remember that only the Swiss judicial authority is empowered to rule on this issue.