Facts

The facts can be summarized as follows

  • Z. (husband) filed a divorce petition against X. (wife) with the Cantonal Court of Zug on January 28, 2011 and requested a summons for a conciliation hearing.
  • The referendary at the Cantonal Court of Zug served the petition on X. on February 1, 2011 for the submission of a statement of defense.
  • X. requested on February 7, 2011 to be relieved of the deadline for submitting a statement of defense and to summon the parties to a conciliation hearing in accordance with Art. 291 CPC.
  • The referendary informed X. on February 11, 2011 that the divorce petition contained a brief justification and therefore there was no room for a conciliation hearing.
  • X. then filed an appeal against this decision with the High Court of the Canton of Zug, which, by presidential decree of February 21, 2011, did not enter into the appeal.
  • X. filed an appeal in civil matters and a subsidiary constitutional appeal against this decree of the High Court with the Federal Supreme Court.

Considerations

The Federal Supreme Court has partially upheld the appeal and remanded the matter to the High Court. The essential considerations are:

  1. The contested decree of the High Court is a preliminary or interim decision within the meaning of Art. 93 BGG, against which an appeal in civil matters is admissible if the decision may cause irreparable harm.

    Such harm exists if it is of a legal nature and cannot be or cannot be fully remedied by a subsequent favorable final decision. The mere possibility of such harm is sufficient.

    In the present case, the refusal to hold a conciliation hearing in accordance with Art. 291 CPC may constitute…