Facts
W. S. and E. S. got married on October 21, 1955 and have a daughter and a son. On June 6, 1979, the joint household was dissolved, and since April 17, 1980, divorce proceedings have been pending between the spouses.
Upon the request of both parties for modification of the provisional measures, the Civil Court decided that W. S. had to pay monthly maintenance contributions of CHF 1,085 for his wife for the period from November 7, 1983 to August 31, 1984, and CHF 1,780 from September 1, 1984 onwards. The husband appealed against this judgment. The Court of Appeal of the Canton of Bern instead obliged W. S. to pay his wife monthly maintenance contributions of CHF 580 for the period from November 7, 1983 to August 31, 1984, and CHF 1,280 from September 1, 1984 onwards.
The wife filed a constitutional complaint due to a violation of Art. 4 of the Federal Constitution, which was upheld by the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the wife's claim for maintenance by the husband in accordance with Art. 160 para. 2 of the Swiss Civil Code (ZGB) also exists during the divorce proceedings. This maintenance claim is generally independent of the wife's financial capacity, but she must contribute to her own living expenses with her own income from employment or assets. This contribution is to be measured in view of the husband's financial circumstances.
The Federal Supreme Court criticizes that the Court of Appeal disregarded these principles and took into account the wife's entire income in calculating her maintenance claim, although the husband has an above-average…