Facts
By judgment of July 23, 2012, the District Court of Uster dissolved the marriage of Y. (respondent) and X. (appellant). It obliged the respondent to pay the appellant the amount of CHF 1,422,744.50 to compensate her claims under the matrimonial property regime. After both parties had filed appeals, the High Court of the Canton of Zurich, by judgment of October 29, 2013, obliged the respondent to pay CHF 1,297,294.- to the appellant under the matrimonial property regime.
The appellant filed a civil law appeal with the Federal Supreme Court and requested that the respondent be ordered to pay CHF 1,422,744.50 under the matrimonial property regime. The only disputed issue was the amount of cash assets in the respondent's estate on the cut-off date for the matrimonial property settlement.
Considerations
According to Art. 160 para. 1 CPC, the parties and third parties are obliged to cooperate in the taking of evidence. If a party unjustifiably refuses to cooperate, the court shall take this into account in the evaluation of evidence (Art. 164 CPC). However, Art. 164 CPC does not specify what conclusions the court should draw from a refusal to cooperate in the evaluation of evidence. In particular, it is not prescribed that the court must automatically conclude that the factual allegations of the opposing party are true. Rather, the unjustified refusal to cooperate is a circumstance among others that flows into the free evaluation of evidence (Art. 157 CPC).
The Federal Supreme Court states that the lower court correctly pointed out that the respondent's refusal to disclose documents must have an adverse effect on him, but this disadvantage must not go further than necessary. If a clear picture emerges from the files, this should be the basis. The appellant…