Maintenance contributions for an extramarital child - Consideration of the father's financial capacity and the duty of support of the spouse

Facts

X. and Y. are married and parents of two children. On February 18, 1998, [Z.] was born, whose paternity was judicially attributed to X. The District Court obliged X. to pay monthly maintenance contributions for Z. The High Court reduced the contributions, whereupon X. appealed to the Federal Court.

The High Court had found that X. has a monthly net income of CHF 3,750.-, while his subsistence minimum is CHF 4,330.-. Nevertheless, it awarded maintenance contributions to [Z.] in order to achieve equal treatment with the marital children.

Considerations

The Federal Court set aside the judgment of the High Court and remanded the case for supplementation of the file and a new decision. It found that the High Court should not have fallen below the debt enforcement subsistence minimum of the father of CHF 3,510.- per month in order to award maintenance contributions to Z. The principle of equal treatment of all children does not justify an encroachment on the…