Facts
On the wife's claim, the single judge dissolved the parties' marriage and regulated the consequences of the divorce. The defendant contested the determination of the income and assets relevant for maintenance. The plaintiff joined the appeal and requested an increase in the maintenance payments owed to her. In his response to the cross-appeal, the defendant requested a reduction of the maintenance payment set at first instance.
Considerations
Art. 138 para. 1 CC provides that in the higher cantonal instance, new facts and evidence can be presented and new legal claims must be admitted, provided they are based on new facts or evidence. The legislator wanted to give greater weight to the goal of finding the truth and the material correctness of the judgment in the divorce process than to the expeditious conclusion of the proceedings.
The Cantonal Court rightly did not admit the defendant's new legal claims in the response to the cross-appeal, as Art. 138 para. 1 CC only represents a federal minimum standard. Cantonal law determines the precise point in…