Facts
This case concerned an agreement between the spouses S. regarding the ancillary consequences of their divorce. The agreement regulated the allocation of the children, the financial consequences, and the allocation of costs. The wife filed for divorce, and both parties initially requested the approval of their agreement. However, later each party demanded that all three children be assigned to them.
The cantonal courts dissolved the marriage, assigned all three children to the plaintiff, obliged the defendant to pay maintenance contributions, and approved Sections 2 and 3 of the agreement dated January 29, 1966. The defendant appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court concluded that the parties' agreement could not be approved in its entirety. While the judge can generally reject individual provisions of a divorce agreement and approve the rest, this is only possible if it cannot be assumed that the agreement would not have been concluded at all without the provisions that must be denied approval.
In the present case, it had to be assumed that the defendant would not have concluded the divorce agreement without the provisions on the…