Facts
A.A. (born 1956) and B.A. (born 1958) were married on January 14, 1983 and have a now adult son. On June 27, 2011, A.A. filed for divorce at the District Court W. (Canton of Schwyz), which was also supported by B.A. in her statement of defense dated October 31, 2011. The District Court granted the divorce on June 19, 2015 based on Art. 114 of the Swiss Civil Code (ZGB).
Both parties appealed. In his main appeal, A.A. requested that the divorce judgment be set aside and his divorce petition be withdrawn. However, the Cantonal Court dismissed A.A.'s main appeal.
Before the Federal Supreme Court, A.A. again requested that the divorce judgment be set aside and his divorce petition be withdrawn. B.A. requested that the appeal be dismissed.
Considerations
The Federal Supreme Court decided that A.A. had no right to withdraw his divorce petition in the appeal proceedings. Although both parties had petitioned for divorce, a spouse cannot unilaterally terminate the divorce proceedings if the other spouse insists on the dissolution of the marriage.
The Federal Supreme Court explained that according to Art. 292 para. 1 of the Swiss Civil Procedure Code (ZPO), the unilaterally filed divorce petition is continued according to the provisions on divorce by joint request if the requirements are met. However, since the parties had been living separately for at least two years, the marriage was dissolved based on Art. 114 ZGB, not by joint request.
Even…