Facts
The parties married on June 27, 1969 and have been living separately since March 1993. On the claim of the wife and the counterclaim of the husband, the District Court of Baden dissolved the marriage of the parties by judgment of October 27, 1999. The High Court of the Canton of Aargau set aside the first instance judgment and remanded the dispute for a new decision, as the plaintiff may be entitled to appropriate compensation pursuant to Art. 124 para. 1 ZGB, since the defendant had the balance of his occupational pension withdrawn when he took up his self-employed activity. The defendant lodges a federal appeal against this decision.Considerations
The Federal Court first examines whether the appeal can be admitted. It concludes that the contested decision is an interim or interlocutory decision within the meaning of Art. 50 para. 1 OG, which can exceptionally be appealed against by way of appeal if the Federal Court is able to immediately reach a final decision.
On the merits, the Federal Court states that the cash withdrawal of the pension assets pursuant to Art. 5 para. 1 lit. b FZG does indeed constitute acquired property in the ordinary property regime, but is to be attributed to the separate property of the pension recipient upon dissolution of the property regime. The other spouse is therefore not entitled to a share in this withdrawal…