Facts
In the divorce protection proceedings between B.S. and P.S., the President of the Court II of K. set the monthly maintenance contribution of the employed husband to his wife and children at CHF 2,360. On the husband's appeal, the Court of Appeal of the Canton of Bern ordered him to pay a total of CHF 2,000 per month to his wife and the two children.
The wife then filed a constitutional complaint alleging a violation of Art. 4 of the Federal Constitution, as the Court of Appeal had placed the entire deficit resulting from the deduction of both subsistence minimums from the total income of the spouses on her alone.
Considerations
The Federal Court dismissed the complaint. It stated that a maintenance arrangement pursuant to Art. 176 para. 1 no. 1 of the Swiss Civil Code, which leaves the employed, maintenance-obligated spouse the subsistence minimum under debt enforcement law and takes into account any deficit solely in the maintenance claim of the other spouse, is not arbitrary.
The Federal Court justified this by stating that Art. 145 para. 2 and Art. 176 of the Swiss Civil Code concern the same situation, namely the dissolution of the common marital household despite the existing marriage. Therefore, it is not untenable to leave the full subsistence minimum to the pension-obligated spouse in the determination of the maintenance contribution within the framework of…