The 3rd pillar does not follow the rules of the 2nd pillar
Contrary to common belief, the 3rd pillar is settled according to the rules of the matrimonial property regime, not according to the special division rules that apply to the 2nd pillar. This fundamental difference has significant consequences.
While 2nd-pillar assets accumulated during the marriage are automatically split equally (the legal principle under Art. 122 CC), the fate of the 3rd pillar depends entirely on your matrimonial property regime.
How is the 3rd pillar divided according to your matrimonial regime?
Under the participation in acquired property regime (standard regime)
If you are married under the default participation in acquired property regime, the 3rd pillar is included in the calculation when liquidating the matrimonial property regime:
- Linked 3rd pillar (pillar 3a): Contributions paid during the marriage form part of the acquêts and are therefore shared equally when the regime is liquidated.
- Free 3rd pillar (pillar 3b): Same treatment as 3a, assets accumulated during the marriage are considered as acquests.
Important information: Only amounts paid in and accumulated during the marriage are concerned. Assets built up before the marriage remain the property of the person who built them up (own property).
Under the separation of property regime
If you have opted for the separation of property regime through a marriage contract, each spouse keeps their entire 3rd pillar, whether it was built up before or during the marriage. No division takes place, unless the spouses agree otherwise.
Under the community of property regime
In this now-uncommon regime, 3rd-pillar assets can be treated as community property if they were accumulated during the marriage, and are then split equally.
Special cases to be aware of
3rd pillar funded with personal assets
If you funded your 3rd pillar with money that belonged to you before the marriage or that you received as a gift or through inheritance, those amounts may be classified as personal property and excluded from the division. You must, however, be able to prove it.
3rd pillar beneficiary in the event of death
The beneficiary clause of your 3rd pillar (which determines who receives the capital in the event of death) must be updated after the divorce. Without changes, your ex-spouse could still appear as the beneficiary.
Differences in treatment between 2nd and 3rd pillars upon divorce
- Criteria
- 2nd pillar (BVG)
- 3rd pillar
- Legal basis
- Sharing principle
- Reference date
- Possibility of waiver
What to do during divorce proceedings
To protect your 3rd pillar interests:
1. List all your assets: Draw up a precise inventory of your 3rd pillars (3a and 3b), including subscription dates and amounts
2. Calculate the marriage period: Identify which share was built up before and during the marriage
3. Keep all proof: Keep all documents proving the origin of the funds (bank statements, inheritance notices, deeds of gift).
4. Negotiate if possible: In a divorce by mutual consent, you can agree to a different division of assets from that provided for in the matrimonial property regime.
The importance of distinguishing between 2nd and 3rd pillars
This distinction isn’t just a legal nuance — it can have a major financial impact. Someone who contributed heavily to the 3rd pillar during the marriage, assuming those amounts would remain fully theirs, could face unpleasant surprises if they are married under the participation in acquired property regime.
Conversely, a spouse who reduced or stopped working to care for the family will benefit from the division of the 2nd pillar (strong protection), but not necessarily from the other spouse’s 3rd pillar if the regime is separation of property.
Conclusion
The 3rd pillar does not benefit from the automatic 50/50 split protection that applies to the 2nd pillar. Its treatment depends entirely on your matrimonial property regime. This difference reflects the nature of the two pillars: the 2nd pillar is mandatory pension coverage that the law strongly protects, while the 3rd pillar is a voluntary form of savings treated like any other asset.
Frequently asked questions
No, this is an essential difference. The 3rd pillar does not follow the special sharing rules of the 2nd pillar. It is liquidated according to the rules of your matrimonial regime, just like any other part of your estate.
The 2nd pillar accumulated during the marriage must be divided equally (50/50), regardless of the matrimonial property regime. The 3rd pillar, however, follows the liquidation rules of your regime and can therefore be treated differently.
It depends on your matrimonial property regime. Under participation in acquired property (the standard regime), contributions made during the marriage are shared. Under separation of property, each spouse keeps their own 3rd pillar. Under community of property, it may be divided as a common asset.
Yes. Under separation of property, each spouse keeps the entirety of their personal assets, including their 3rd pillar, whether it was built up before or during the marriage.
Only the amounts paid in and accumulated during the marriage are subject to division (under participation in acquired property). Assets built up before the marriage remain your personal property and are not divided.
No, both types of 3rd pillar follow the same liquidation rules based on your matrimonial property regime. The distinction between 3a (restricted) and 3b (flexible) has no impact on the division in a divorce.
Yes, absolutely. You are required to disclose the entirety of your assets, including all your 3rd-pillar accounts, regardless of the institution holding them.
No. If you can prove that the funds come from an inheritance or a gift, they are treated as personal property and are excluded from the division, even under participation in acquired property.
Keep all account-opening documents, early bank statements, and proof of contributions made before the marriage. These records establish when the assets were built up and help distinguish personal property from acquired property.
Keep all account-opening documents, early bank statements, and proof of contributions made before the marriage. These records establish when the assets were built up and help distinguish personal property from acquired property.
