Facts

The parties, the husband (born in 1945) and the wife (born in 1953), were married on 23 October 1972 and had two adult children. Their marriage was marked by significant marital difficulties over several years.

By judgment of 4 April 2017, the Civil Court of the district of Lausanne pronounced their divorce, without providing for any maintenance contribution between them. It ordered the husband to pay the wife CHF 28,121.45 in respect of the liquidation of the matrimonial property regime and refused the husband an equitable indemnity under the former Art. 124 CC.

The husband appealed to the Civil Appeal Court of the Cantonal Court of the canton of Vaud, which, by judgment of 11 April 2018, partially reformed the decision. It ordered the wife to pay the husband CHF 2,094.50 in respect of the liquidation of the matrimonial property regime, confirming the remainder of the judgment.

The husband filed an appeal with the Federal Supreme Court, which dismissed his claim.

Considerations

The Federal Supreme Court examined the application of the new law on the sharing of occupational pension benefits between spouses, which entered into force on 1 January 2017 and applies to divorce proceedings pending at that date. Art. 124a CC governs specifically the sharing of old-age or disability pensions received by a spouse at the time the divorce proceedings were initiated, where the calculation of an exit benefit is no longer possible. The judge has discretion to determine the terms of the sharing, taking into account in particular the duration of the marriage and the pension needs of each spouse.

Art. 124b para. 2 CC provides for the possibility for the judge to deviate from the principle of equal sharing for valid reasons, without providing an exhaustive list. The legislature expressly indicated that a serious breach by a spouse of his or her obligation to contribute to the maintenance of the family (Art. 163 CC) could constitute such a valid reason, unlike the previous case law (ATF 133 III 497). This interpretation is confirmed by the preparatory works and part of the doctrine, which emphasise that the new law relaxes the conditions for excluding total or partial sharing.

However, the Federal Supreme Court recalls that this derogation must be applied restrictively so as not to deprive the principle of equal sharing of its substance. Only particularly shocking situations, where the breach of family obligations is serious and prolonged, can justify a…