Facts
On May 22, 2003, the marriage between X. and Y. was divorced. Y. was obligated to pay maintenance contributions to his ex-wife for the three children A., B. and C. After the divorce, Y. remarried and had two more children, E. and F., with his new wife D.
In 2007, Y. applied to the Amtsgericht Hochdorf to be released from the maintenance obligation towards his children from the first marriage. The Amtsgericht granted his application and only obligated him to pay child and education allowances. X. appealed against this judgment, but the Obergericht of the Canton of Lucerne dismissed the appeal.
In her appeal to the Federal Supreme Court, X. requested that Y. be ordered to pay the requested maintenance contributions plus child and education allowances.
Considerations
The Federal Supreme Court concluded that the lower court had incorrectly applied the principles for determining parental maintenance under Art. 285 of the Swiss Civil Code (ZGB). In particular, the Obergericht had taken into account not only Y.'s own subsistence minimum, but also the subsistence minimum of his entire second family when determining his economic capacity.
The Federal Supreme Court stated that the maintenance debtor can only claim the securing of the subsistence minimum for his own person. Child-related items of the maintenance debtor's children living in the same household, as well as maintenance contributions for non-marital children, may not be taken into account in the calculation of the subsistence minimum.
To the…