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Old 21.09.2007, 21:52
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Spousal Right & Contract Law

Can anyone tell me what spousal rights are in Switzerland in particular if a spouse has automatic legal power of attorney to make or change contracts on behalf of the other. The reason I ask is that my husband agreed to a new phone provider and as the Swisscom contract is in my name this other company started sending bills to me. When I complained that I had no contract with them and they should not be sending me bills to something I had not agreed to they said if you are married the other person has under Swiss law automatic power of attorney. Are they right?
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Old 24.09.2007, 03:34
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Re: Spousal Right & Contract Law

That's total rubish. You and your better half are still two different legal persons and each of you signs contracts in his/her name. The decision to sign a contract together is something explicitely different and of importance for example in appartment rental contracts (see ZGB Art. 168-169). Each spouse is only liable with his entire fortune to debtees (ZGB Art. 249). So the follow-up question is, are there bounds between your and your spouse's fortune?

In a marriage, each partner gets by default half of the fortune the other makes since the wedding and each partner should enact on his half in consensus with the spouse (Errungenschaftsbeteiligung / participation aux acquêts / "community of acquisitions"). Other forms of marriage contracts (separate estate, community of property) must be made at a notary's office. But the entire second paragraph is none of the phone company's business until they take legal action against your spouse to get their money...
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Old 24.09.2007, 09:19
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Re: Spousal Right & Contract Law

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Can anyone tell me what spousal rights are in Switzerland in particular if a spouse has automatic legal power of attorney to make or change contracts on behalf of the other. The reason I ask is that my husband agreed to a new phone provider and as the Swisscom contract is in my name this other company started sending bills to me. When I complained that I had no contract with them and they should not be sending me bills to something I had not agreed to they said if you are married the other person has under Swiss law automatic power of attorney. Are they right?
Yes they indeed are. Each partner in a marriage can represent the other, (also without their knowledge!) for what can be termed as daily business. And a telephone provider change can(will) be seen in that way. In this case you are then jointly liable. Seeing as we are quoting legal texts you can find it here:

http://www.admin.ch/ch/d/sr/210/a166.html
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Old 24.09.2007, 09:45
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Re: Spousal Right & Contract Law

this reminds me of Guetertrennung (I think it translates as separation of assets), which I have always wondered about but haven't come up with anything on the EF search function. Lou, I hope you don't mind me hijacking your thread to ask.

Am I right in thinking that the best reasons married couples do a Guetertrennung is when one partner opens a business and doesn't want the spouse to be liable for debt thereof? Or personal debt? Are there any other reasons, or what is the purpose of this Guetertrennung for married people exactly?
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Old 24.09.2007, 09:50
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Re: Spousal Right & Contract Law

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Are there any other reasons,
You don't want your significant other to get 50% of your pension funds when you part ways... Negating access to family inheritance is also top of the list in Valais...
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Old 24.09.2007, 10:26
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Re: Spousal Right & Contract Law

thanks Shorrick. With the family inheritance, why in Valais in particular? Does Guetertrennung differ from canton to canton, or are you alluding to a lot of wealth in Valais
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Old 24.09.2007, 10:28
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Re: Spousal Right & Contract Law

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thanks Shorrick. With the family inheritance, why in Valais in particular? Does Guetertrennung differ from canton to canton, or are you alluding to a lot of wealth in Valais
Ahh, not necessarily a lot of wealth, they like to keep the pastures and the shepherd huts in the family

But the same principle applies to all the cantons.
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Old 24.09.2007, 16:14
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Re: Spousal Right & Contract Law

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Yes they indeed are. Each partner in a marriage can represent the other, (also without their knowledge!) for what can be termed as daily business. And a telephone provider change can(will) be seen in that way. In this case you are then jointly liable. Seeing as we are quoting legal texts you can find it here:

http://www.admin.ch/ch/d/sr/210/a166.html
Hmm, didn't know that this applies to mundane things like a phone contract. I should study the law again before getting married (not because of a hut in Valais though ).
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Old 24.09.2007, 20:35
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Re: Spousal Right & Contract Law

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this reminds me of Guetertrennung (I think it translates as separation of assets), which I have always wondered about but haven't come up with anything on the EF search function. Lou, I hope you don't mind me hijacking your thread to ask.

Am I right in thinking that the best reasons married couples do a Guetertrennung is when one partner opens a business and doesn't want the spouse to be liable for debt thereof? Or personal debt? Are there any other reasons, or what is the purpose of this Guetertrennung for married people exactly?
Not at all, it looks like all part of the same subject.
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Old 24.09.2007, 20:37
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Re: Spousal Right & Contract Law

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Yes they indeed are. Each partner in a marriage can represent the other, (also without their knowledge!) for what can be termed as daily business. And a telephone provider change can(will) be seen in that way. In this case you are then jointly liable. Seeing as we are quoting legal texts you can find it here:

http://www.admin.ch/ch/d/sr/210/a166.html
Thanks for that, I don't think that is quite the same as totally power of attorney that they were trying to fob me off with but they are in the right.
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Old 04.12.2007, 13:50
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Re: Spousal Right & Contract Law

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You don't want your significant other to get 50% of your pension funds when you part ways... Negating access to family inheritance is also top of the list in Valais...
A late entry to this conversation, but how does one go about getting this Guetertrennung?
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Old 04.12.2007, 14:09
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Re: Spousal Right & Contract Law

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A late entry to this conversation, but how does one go about getting this Guetertrennung?
Well the first question I suppose is do you know what it is?

Gütertrennung is the separation of assets and incomes as permitted by law. This is rather complicated as you can cry all you like but you cannot separate everything. It does provide some protection against joint liability in the case of someone creating substantial debts but there again so does Swiss law. If your partner had a gambling problem and acted unreasonably and without your permission you could protect your assets from claims against him.

The real place where Gütertrennung take effect is if you are working and earning a considerable amount of money or come into money and do not want your partner or in particular your partners family to get a share of it.

If you want to have Gütertrennung you need to go and see a notar who will draft a two or 3 page document which includes the sentence:
Die Eheleute ... und ... vereinbaren in Abänderung ihres bisherigen ordentlichen Güterstandes der Errungenschaftsbeteiligung den Güterstand der Gütertrennung gemäss Art. 247ff AGB.

And then you will define what will be split with something like:
Unter die Gütertrennung fällt das gesamte Einkommen und das gesamte Vermögen beider Ehegatten.

you then say from when it starts and sign it...
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Old 04.12.2007, 14:38
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Re: Spousal Right & Contract Law

Thanks for that fast response, Richard. I was just reading your incredibly informative responses in another thread, regarding rights around job loss. I'm a newbie obviously, and was fishing for some info regarding rights and assistance re job-related stress and illness. I assume this is not the thread for such a question, so being a bit brief. Could you point me in the right direction, in the forum or ...? I very much appreciate your knowledge and contributions!
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