Second-pillar (LPP) split on divorce — CC arts. 122-124e

On a 15-year marriage between two Geneva executives, the second-pillar split can amount to CHF 200’000 to 500’000. It is often the largest financial stake in a divorce — and one of the most poorly anticipated. An error or omission at the judgment stage is almost irreversible afterwards.

The firm calculates, negotiates and defends LPP splits in Geneva, including for expatriates with pension accounts in several countries.

Legal framework

• CC arts. 122-124e (RS 210) — reform in force since 1 January 2017
• CPC art. 281 (RS 272) — splitting procedure
• LFLP (Vesting Act, RS 831.42)
• LPP (Occupational Pensions Act, RS 831.40)
• LDIP art. 63 (RS 291) — exclusive jurisdiction of Swiss courts for the split of LPP assets held in Swiss institutions

Principle — CC art. 122

“The acquired exit benefits, including vested-benefits accounts and advance withdrawals for home ownership, shall be split between the spouses.”

Consequences:

• Split is mandatory — not optional
• Independent of the matrimonial property regime (separation of property, participation in acquisitions, community — irrelevant)
• Covers assets accumulated during the marriage (from the day of marriage to the filing of the divorce petition)

Calculation mechanics

Step 1: determining the period

• Start: date of the civil marriage
• End: date of the filing of the divorce petition (CC art. 122 para. 2)

Assets built up before marriage or after the filing are not split. Advance withdrawals for home ownership (purchase of a flat using LPP funds) are included in the calculation.

Step 2: pension-fund certificates

Each spouse requests from their pension fund(s) a certificate showing:

• Balance on the day of marriage
• Balance on the day of the filing of the divorce petition
• Difference = exit benefit acquired during the marriage (with interest)

Step 3: compensation

The difference between the two acquired exit benefits is split in half.

Worked example:

• Spouse A: LPP acquired during marriage = CHF 280’000
• Spouse B: LPP acquired during marriage = CHF 60’000
• Difference: CHF 220’000
• Compensation to be transferred from A to B: CHF 220’000 / 2 = CHF 110’000

Step 4: actual transfer

The court orders the transfer in the judgment. A’s fund debits the amount and credits it to B’s fund (or a vested-benefits account if B has no active fund). No cash payment — the asset remains tied to occupational pension.

Pensions already drawing — CC art. 124a

When one spouse is already drawing a disability or retirement pension at the time of divorce, the mechanism is different:

• The exit benefit can no longer be calculated
• The judge sets a pension share payable to the other spouse by direct transfer between pension funds
• This share can be paid until the end of the beneficiary’s life

This mechanism, created by the 2017 reform, corrected the prior injustice whereby a divorce after the pension had started blocked any split.

Exceptions to the split — CC art. 124b

The judge can refuse or reduce the split where it would be manifestly inequitable. Grounds recognised in Federal Supreme Court case law:

• Obvious material inequity — for example, where one spouse abandoned the other for 10 years, leaving them with the children and all the household burdens
• Very short marriage with disparate pension levels — without effective contribution by one to the career of the other
• Foreign spouse who contributed for few years to a Swiss system, while their career took place abroad

CC art. 124b is interpreted restrictively — the rule remains the equal split. Pleading reduction requires a solid file.

Splitting agreement — CC art. 124c

The spouses can agree by contract on a split different from the legal split, provided that:

• The agreement is balanced in light of overall pension protection (LPP + AVS + LAI + Pillar 3)
• Neither spouse ends up with manifestly insufficient pension protection
• The judge explicitly ratifies the agreement

An inadequate splitting agreement may be refused by the judge — legal certainty requires retirement protection to remain safeguarded even where the parties agree.

Practical case: advance withdrawal for home ownership (EPL)

Where one spouse has used LPP funds to buy the family flat (advance withdrawal — encouragement à la propriété), the amount withdrawn remains accounted for in the split. If the value of the property has changed since, capital gains or losses enter into the liquidation of the matrimonial property regime — a complex interaction between LPP and asset splitting.

Practical case: foreign pension

For a Geneva-based expat executive with a Swiss LPP and a foreign retirement plan (e.g. French Plan Épargne Retraite, US 401(k)):

• The Swiss LPP is split under CC art. 122, Swiss court has jurisdiction (LDIP art. 63)
• The foreign retirement plan is treated according to the matrimonial property regime (acquisitions, separate property) and the applicable foreign law
• Coordination is essential to avoid double counting or omission

Practical case: LPP paid out in capital before divorce

If one of the spouses received their LPP as capital (e.g. when setting up a business) during the marriage, the capital received is integrated into the calculation. It becomes an acquisition — valued at the date of payment, with interest.

Procedure

Phase 1: production of certificates

As soon as the divorce petition is filed, each spouse must produce certificates from all their pension funds, active and vested-benefits alike. The Geneva court takes this requirement seriously — failure to produce can lead to refusal of the judgment.

Phase 2: adversarial calculation

The lawyer verifies the figures, calculates the compensation, and checks that no fund has been forgotten (employer changes, dormant accounts).

Phase 3: ratification or judgment

The court either ratifies the agreement or rules on its own where there is disagreement.

Phase 4: transfer

The clerk transmits the order to the pension funds. Actual transfer occurs 3-6 months after the judgment becomes final.

Timelines

• Included in the divorce procedure (6-24 months)
• Actual transfer: 3-6 months after the judgment becomes final

Costs

• First consultation: CHF 50
• LPP split integrated into a divorce: no separate additional cost
• Independent advice on a complex LPP split (foreign LPP, self-employed, expatriate): CHF 1’500-4’500
• Appeal against a pension-fund decision: variable
• Legal aid (assistance juridictionnelle): available

Common pitfalls

1. Forgetting accounts. A Geneva executive who has changed employer 3-4 times in 15 years may hold 3-4 dormant vested-benefits accounts. All must be declared.
2. Failing to invoke CC art. 124b when it would apply. If the situation justified a reduction, this is when it had to be argued — after the judgment, it is too late.
3. Imbalanced splitting agreement ratified lightly. The judge can refuse — and even if ratified, an oversight in pension protection can come back to haunt you.
4. Confusing AVS pension and LPP pension. AVS is split differently (splitting at retirement, not at divorce). LPP is split now.
5. Ignoring tied Pillar 3 (3a). Pillar 3a assets count as pension protection and enter into the balance assessment.

Documents to prepare

• Certificate from each pension fund: balance at marriage + balance at divorce
• Certificates for vested-benefits accounts (all former employers)
• Notice of EPL advance withdrawal if applicable
• For expatriates: certificates of foreign retirement plans
• OFAS calculation for AVS splitting (if retirement is imminent)

Going further

• Judicial divorce — the setting in which the split is decided
• Cross-border divorce (Swiss-French) — international dimension
• Maintenance — articulation with maintenance
• OFAS benefits: https://www.ofas.admin.ch/

Maître Andrea von Flüe has handled LPP splits in Geneva since 2012. First consultation CHF 50.