Division of occupational pension assets in divorce
The principle of equal division
Occupational pension assets (2nd pillar) accumulated by both spouses during the marriage up to the start of divorce proceedings are in principle divided equally between them (art. 122 CC). This division aims to offset the pension disadvantage often suffered by the spouse who reduced or gave up gainful employment to devote themselves to the household or children.
When a spouse is already retired or disabled
If a spouse already receives an old-age or disability pension at the time of divorce, a conventional division of the pension assets is no longer possible: the law then provides for a division of the pension itself, in the form of a lifelong pension paid to the entitled spouse (art. 124a CC).
Deviations from equal division
The court may deviate from equal division for good cause, in particular where such division would be manifestly inequitable given the spouses' respective pension needs, for example due to a large age gap or as a result of the division of marital property (art. 124b CC).
Carrying out the division
The court forwards the file to the pension funds concerned, which carry out the transfer of the amounts. If a spouse is not affiliated with any pension fund, or if direct transfer is not possible, the Substitute Occupational Benefit Institution steps in to receive and manage the transferred amounts.
Frequently asked questions
Is the division of the 2nd pillar automatic in a divorce?
Yes, unless the spouses agree otherwise and the court approves it, or a special situation applies (retirement, disability): equal division of the assets accumulated during the marriage is the statutory principle (art. 122 CC).
What happens if a spouse is already retired?
A conventional division of the assets is no longer possible; the law then provides for a division of the old-age or disability pension itself, paid to the entitled spouse as a lifelong pension (art. 124a CC).
Can spouses waive the division of the 2nd pillar?
Spouses can agree on a different division or partially waive it in an agreement on the effects of divorce, provided adequate old-age and disability provision remains guaranteed for both, which the court checks before approving the agreement.
Is the 3rd pillar also divided in a divorce?
Tied 3rd pillar assets (3a) and unrestricted 3rd pillar assets (3b) do not fall under the division of occupational pension assets in art. 122 CC; they are in principle dealt with as part of the division of marital property, depending on the matrimonial property regime that applies.