Limitation of the Defendant's Duty to Provide Security in a Paternity Suit to Three Months

Facts

In the paternity suit against X., the plaintiffs M.M. and R.M. filed a request with the District Court of Lucerne-Land pursuant to Art. 321 of the Swiss Civil Code (ZGB) to compel the defendant to provide security for the costs of childbirth and monthly maintenance payments for the child. The District Court and the High Court of the Canton of Lucerne largely granted the request and ordered the defendant to secure the presumed maintenance claim of the child through monthly payments to the court registry.

The defendant filed a constitutional appeal against the decision of the High Court for violation of Art. 4 of the Swiss Federal Constitution (BV). The Federal Supreme Court considered that the decision of the High Court represents an irreparable disadvantage for the appellant, as he cannot dispose of the deposited amounts during the proceedings. Therefore, the constitutional appeal is admissible.

Considerations

The Federal Supreme Court states that Art. 321 ZGB limits the defendant's duty to provide security in a paternity suit to the presumed costs of childbirth and maintenance of the child for the first three months, regardless of whether the claim is at risk or not. An extension of this regulation by the judge is not permissible, as this is not a genuine gap in the law.

The Federal Supreme Court emphasizes that the legislator was aware that paternity suits usually take longer when it limited the duty…