Pension equalization in Switzerland: Content and procedure of a claim (Part 3/3)

• Arbitration
• Pension equalisation
• Private Clients

If the divorced spouses are unable to agree on the implementation of pension compensation in Switzerland following a divorce abroad and no agreement is reached as a result, the entitled divorced spouse must assert their claim by taking legal action. The lack of agreement may result, for example, from the fact that the divorced spouse who is actually obligated already considers himself or herself to be separated in terms of property law on the basis of the divorce decree or that no agreement could be reached on the pension assets to be included or the division ratio.

Requirement to file a lawsuit

Regardless of the parties’ intentions, a foreign divorce decree always requires supplementation if there are pension assets in Switzerland. A divorce decree issued abroad regarding the settlement of pension claims against a Swiss occupational benefits institution can generally no longer be recognized due to the mandatory and exclusive jurisdiction of the Swiss courts. The place of jurisdiction for filing an action is determined either by the domicile or place of origin of one of the parties in Switzerland or, alternatively, by the domicile of the vested benefits or pension fund involved.

Legal claims of the action

The action of the entitled divorced spouse against the obligated divorced spouse relates to the recognition and amendment of the foreign divorce decree, as the existing divorce decree in Switzerland must always be recognized for the requested implementation of the pension equalization. The action then includes in particular the application for (half) division of the pension assets acquired in Switzerland during the marriage and for instructions to the institution of the obligated party to transfer the corresponding difference to a vested benefits account of the entitled party. Depending on the individual case, procedural applications must also be made to obtain a declaration of feasibility or to subsequently quantify the pension claim asserted.

Judicial amendment of the foreign divorce decree

If the parties fail to reach an agreement on pension equalization, the competent court decides on the division ratio, determines the amount to be transferred and, if necessary, obtains confirmation from the occupational pension institutions involved that the intended settlement is feasible (so-called feasibility declaration). The only prerequisite for this procedure is that the relevant assets and pensions are known. From the plaintiff’s point of view, it is therefore advisable to set out the claims acquired during the marriage up to the time the divorce proceedings are initiated (on both sides) as far as possible when filing the action. The court will then inform the institutions involved of the legally binding decision on the points concerning them and instruct them to implement the pension equalization accordingly. This court decision is binding for the institutions involved. If, however, the assets and pensions relevant for the pension equalization remain unclear or disputed on one or both sides, the court must refer the proceedings to the competent (social insurance) court, stating the division ratio. The latter shall then decide on the question of the existing pension assets and carry out the division.