Facts
A. and B. X. are in the process of divorce. By order dated September 10, 1987, the District Court President, based on Art. 145 of the Swiss Civil Code (ZGB), ordered provisional measures: The son was placed in the custody of the mother, and the previously family-occupied single-family house was assigned for their use. A. X. was obliged to pay a monthly contribution of CHF 750 (plus child allowances) for the maintenance of the son, and a contribution of CHF 3,800 for the maintenance of the wife (including costs for the house).
By submission dated January 4, 1988, A. X. applied to the District Court President for a reduction of the maintenance contribution awarded to the wife to CHF 2,050 per month, effective January 1, 1988 (the date of entry into force of the new matrimonial law). However, the request for modification was rejected.
Considerations
The Federal Court dismisses the appeal. It holds that according to Art. 8 para. 1 of the Introductory Provisions to the Swiss Civil Code (SchlT ZGB), the new law applies immediately upon its entry into force, also to the effects of the marriage in general, and thus to the provisional measures to be ordered during the divorce proceedings. Therefore, the judge in the relevant proceedings must apply the new law from January 1, 1988, even to facts that date back to before January 1, 1988.
The Federal Court explains that the new Art. 163 of the Swiss Civil Code (ZGB) has brought significant changes compared to the previous law. While under the former Art. 160 para. 2 of the Swiss Civil Code (aZGB), the husband had to provide for the maintenance of the wife and child in a proper manner, the spouses now have to jointly provide for the maintenance of the family. The wife no longer has a statutory entitlement to fulfill her contribution by running the household and to be generally exempted from gainful employment.
The Federal Court further states that the dissolution of the common household in connection with the…