Facts
The case concerns the division of the advance withdrawal for home ownership in the context of a divorce, after the property acquired with the help of the advance withdrawal was sold or realized. The Federal Supreme Court had to decide how the pension equalization under Art. 22 LFLP should be carried out in such a situation.
The appellant and the respondent were married. During the marriage, they had made an advance withdrawal from the respondent's occupational pension to acquire a property. This property was later sold or realized without any proceeds. In the context of the divorce, it had to be clarified how this advance withdrawal should be taken into account in the pension equalization.
Considerations
The Federal Supreme Court states that the advance withdrawal for home ownership must generally be included in the pension equalization under Art. 22 LFLP. However, the division is limited to the proceeds from the sale of the property, if any were obtained. If the property was sold or realized without any proceeds, the withdrawn amount is lost for the pension and does not have to be divided anymore.
According to the Federal Supreme Court, this solution corresponds to the purpose and intent of the pension equalization. Accordingly, only the pension assets acquired during the marriage should be divided, not the pension assets that one spouse already had at the time…