Facts
A.A. (born 1963; Swiss national) and B.A. (born 1971; Turkish national) married in 2003. On October 20, 2010, A.A. filed a claim for annulment of marriage, or alternatively for divorce, with the District Court of Zurich, invoking the ground for annulment under Art. 105 para. 4 CC. The District Court and the High Court of the Canton of Zurich dismissed the annulment claim, as the ground for annulment introduced on January 1, 2008 under Art. 105 para. 4 CC could not have retroactive effect on the marriage concluded in 2003.
A.A. filed a civil law appeal with the Federal Supreme Court, requesting the annulment of the marriage concluded on July 22, 2003, or alternatively the remand of the case to the High Court.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that in the absence of specific intertemporal law provisions in connection with the entry into force of Art. 105 para. 4 CC, the cantonal courts had applied the general rule under Art. 1 Final Title CC, according to which the legal effects of facts are assessed according to the law in force at the time of the occurrence of those facts (principle of non-retroactivity).
An exception under Art. 2 Final Title CC, which provides for true retroactivity, is rather rare. It is not enough that the new norm is of an imperative nature; public order and morality only allow retroactive application if the norm belongs to the fundamental principles of the current legal order. This is not the case with Art. 105 para. 4 CC.
The decisive factor is that in the present context, the punctual element of the conclusion of the marriage, rather than the continuous element of the marital status, is in the foreground.…