Facts
In a judgment dated June 6, 1991, the Federal Supreme Court dealt with the question of whether a maintenance replacement pension under Art. 151 para. 1 CC can also be reduced if the financial circumstances of the pension recipient improve. The defendant had filed a lawsuit with the Cantonal Court to reduce the pension to which he was entitled under the divorce judgment, as the plaintiff's financial situation had improved.
The Cantonal Court and the Cantonal High Court had dismissed the defendant's counterclaim, as under the previous case law of the Federal Supreme Court, an improvement in the financial circumstances on the part of the pension recipient did not constitute a ground for reducing the maintenance replacement pension under Art. 151 para. 1 CC.
The defendant appealed against the High Court's judgment to the Federal Supreme Court, requesting that the counterclaim be upheld.
Considerations
In its considerations, the Federal Supreme Court stated that it would change its previous case law, according to which an improvement in the financial circumstances on the part of the pension recipient does not constitute a ground for reducing the maintenance replacement pension under Art. 151 para. 1 CC.
The Court justified this by stating that the maintenance replacement pension under Art. 151 para. 1 CC has characteristics of tort law, but the principles of general tort law should not be applied schematically. Furthermore, the Federal Supreme Court had already begun in its case law prior to the entry into force of the new matrimonial law on January 1, 1988, to take greater account of the economic performance of the divorced wife.
The Federal Supreme Court further stated that according to the explained practice of the divorce courts, the earning capacity of the entitled spouse must also be taken into account when determining the amount and duration of a maintenance replacement pension under Art. 151 para. 1 CC. It cannot be…