Facts
The case concerns the question of what consequences may be attached to the fact that the spouse filing for divorce does not pay the procedural cost advance (provisio ad litem) imposed in favor of the other spouse. The High Court had considered it lawful to threaten non-entry on the divorce petition in the event of non-payment and subsequently not to enter on it.
A. filed for divorce from his wife B. at the District Court of Zurich. The District Court ordered A. to pay a procedural cost advance of CHF 5,000 to B. Since A. did not pay the advance, the District Court ultimately did not enter on the divorce petition.
A. appealed against this decision, which the High Court of the Canton of Zurich, however, dismissed. Thereupon, A. filed a civil law appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court concluded that the payment of the matrimonial procedural cost advance by the spouse filing for divorce is not a procedural requirement. There is no legal basis to threaten non-entry on the petition in the event of default in paying the procedural cost advance.
The Federal Supreme Court stated that the fulfillment of the obligation to pay a procedural cost advance is of a private law nature, but can also have procedural effects. However, it does not constitute a procedural act in the proper sense. Even if one were to regard the non-payment as default within the meaning of Art. 147 para. 1 CPC, pursuant to Art. 147 para. 2 CPC the proceedings would have to be continued without…