Crediting of IV Child Pensions to Child Support

Facts

The parties married in 1981 and became parents of two children. By judgment of June 19, 1997, the District Court dissolved the marriage, placed the children under the parental authority of the mother, and obliged the father to pay monthly child support of CHF 850 each, plus child allowances. During the divorce proceedings, an IV (disability insurance) assessment procedure was initiated at the request of the father. In 1999, the Social Insurance Institution awarded the father a half IV pension and IV child pensions with effect from March 1, 1996. On October 26, 1999, the father initiated proceedings for judicial modification of the divorce judgment and requested the crediting of the IV child pensions against the child support payments.

Considerations

The Federal Court decided that the law in force until January 1, 2000 applies for the period before that date. Pursuant to Art. 285 para. 2 CC, social insurance pensions and similar benefits to which the person liable for maintenance is entitled are to be paid in addition to the maintenance contribution, unless the court decides otherwise. Only from January 1, 2000 onwards does the new Art. 285 para. 2bis CC apply, according to which the maintenance contribution is automatically reduced to the extent of the subsequently awarded IV child pension.

For the period before October 26, 1999, the principle of the cumulation of the maintenance contribution and social benefits therefore applies. From…