Facts
The parties are married and have a son. After their separation, the child lived alternately with his father and mother. In October/November 2001, the wife requested matrimonial protection with the application to grant her separate living and to regulate its consequences. By urgent order of 18 March 2002, the District Court of Lucerne-City placed the son under the parental care of the child's mother and regulated the visiting rights of the child's father. On 21 March 2002, the husband filed a divorce lawsuit with the District Court of March and applied for interim measures during the divorce proceedings. The District Court of Lucerne-City then declared the matrimonial protection proceedings settled, which the High Court of the Canton of Lucerne overturned.
Considerations
The Federal Court holds that according to the previous case law, matrimonial protection proceedings do not simply become irrelevant by the filing of a divorce lawsuit. The matrimonial protection court remains competent for measures until the divorce becomes pending, even if it can only decide on this after this time.
For the time before the divorce becomes pending, the matrimonial protection court is competent, for the time thereafter the divorce court. The revision of the divorce law of 1998/2000 has not changed this delimitation of jurisdiction. Only a one-year retroactive effect for maintenance…