Divorce in the event of the plaintiff's incapacity to judge

Facts

On December 30, 1987, Bernhard X. filed a divorce petition against Luise X.-C. with the Civil Court of the Canton of Basel-Stadt. The Civil Court granted the divorce of the parties on May 16, 1989, based on Art. 142 of the Swiss Civil Code (ZGB). Luise X.-C. appealed this judgment to the Federal Supreme Court.

Luise X.-C. requested that the divorce petition not be considered, as the plaintiff could have been incapable of judgment at the time of the judgment. Alternatively, she demanded the clarification of the plaintiff's capacity to judge by experts.

Considerations

The Federal Supreme Court states that the capacity to proceed is conclusively regulated by federal law, and the judge must consider it ex officio. Persons incapable of judgment can generally only assert their rights through a legal representative, with the exception of absolutely personal rights.

In its previous case law, the Federal Supreme Court has always rejected the assertion of the divorce claim by the legal representative of an incapable spouse. This is based on the reasoning that the will to divorce must be based on the personal decision of the spouse, and a presumption about how the person concerned would have decided in possession of his mental faculties cannot replace the decisive personal decision.

However, the Federal Supreme Court sees that the incapacity to judge could…