Facts
On March 15, 1963, the marriage between the Italian national Bruno Lorenzo Dal Bosco and the Swiss-born Sylvia née Gerber was divorced by the District Court of Bern. Subsequently, Dal Bosco lived in Bern with Rosmarie Ruth Walther, who had been divorced from Paul Miserez since April 28, 1961 and was domiciled in Lajoux (Canton of Bern). On April 17, 1969, Dal Bosco and Walther were married in Tønder (Denmark).
Rosmarie Ruth Walther applied to the Office of Civil Status of the Canton of Bern for permission to register the new marriage in the family register of the municipality of Lajoux. The Office and the Cantonal Government of Bern rejected the application, as according to the case law of the Federal Court in the Caliaro case, a marriage concluded abroad by an Italian divorced in Switzerland cannot be recognized in Switzerland.
Dal Bosco and Walther then filed an administrative court appeal with the Federal Court, requesting that their marriage concluded in Denmark be recognized and its registration in the family register be ordered.
Considerations
The Federal Court first states that decisions of the cantonal supervisory authorities in civil status matters can be appealed to the Federal Court under Art. 97 and 98 lit. g OG. In this case, only the registration request is to be decided, not the question of recognition of the marriage, which is a preliminary issue.
The Federal Court then comprehensively examines whether the marriage concluded in Denmark is to be registered in the family register or whether recognition of this marriage is to be denied in Switzerland. It comes to the conclusion that the marriage of the appellants is to be recognized in Switzerland and registered in the family register.
Although Art. 7c para. 1 NAG provides that the validity of a marriage is to be judged according to the law of the home country of the groom, the bride or both, since Denmark is not a contracting state of the Hague Convention of June 12, 1902 on the Conflict of Laws in Relation to the Celebration of Marriage, the relevant provisions of Swiss national law are to be applied.
The Federal Court considers it no longer justified to…