Facts
The Federal Court was seized of an appeal against a judgment of the Geneva Court of Justice of 19 March 2004. The case concerned the divorce of spouses Y. and the determination of maintenance contributions in favor of their child and spouse. The Geneva Court of First Instance had initially set the contributions at 850 fr. for the child and 700 fr. for the spouse. The Court of Justice had increased these amounts to 950 fr. for the child and 1,000 fr. for the spouse.
The applicant filed an appeal against this judgment, which was partially admitted by the Federal Court. The case was referred to the cantonal authority to complete the state of facts on three specific points. The cantonal court then ordered a written investigation and took into account a new fact invoked by the defendant, namely her loss of earning capacity following a relapse of her epilepsy.
The applicant contested the admissibility of this new fact and the new conclusions that followed, arguing that the cantonal court had exceeded the strict framework of the referral judgment. The cantonal court considered the new fact to be admissible and condemned the applicant to pay a maintenance contribution of 700 fr. to the defendant without time limit.
Considerations
The Federal Court examined the question of whether the cantonal court had exceeded the strict framework of the referral judgment by declaring the new fact invoked by the defendant admissible. It considered that, according to art. 66 al. 1 FJA, the cantonal authority to which a case is referred may take into account new allegations to the extent that the cantonal civil procedure permits, but it is required to base its new decision on the legal considerations of the Federal Court's judgment.
The Federal Court also considered that the inquisitorial principle of art. 145 al. 1 CC also benefits the maintenance debtor, who can invoke it to request a reduction of the contribution in favor of the child. It also examined the consequences of violating this principle on the…