Rejection of securing a needs-based pension under Art. 152 Swiss Civil Code (ZGB)

Facts

The case concerns the question of whether a needs-based pension awarded under Art. 152 ZGB can be secured pursuant to Art. 43 para. 2 Swiss Code of Obligations (OR). The divorced wife had been awarded a needs-based pension under Art. 152 ZGB by the High Court and now demanded its security.

The Federal Supreme Court dismissed the request for securing the pension. It stated that the pension under Art. 152 ZGB is not of a compensatory nature like that under Art. 151 para. 1 ZGB, but is owed as a post-marital obligation of solidarity beyond the dissolution of the marriage. The liability law regulation of Art. 43 para. 2 OR cannot therefore be applied by analogy.

Considerations

The Federal Supreme Court emphasized that although according to the wording of Art. 7 ZGB the general provisions of the OR are also applicable to other civil law relationships, the peculiarity of a civil law relationship may lead to a restriction or modification of the applicable OR provisions.

In the present case, the facts of Art. 43 para. 2 OR and those under Art. 152 ZGB are not equivalent. In particular, Art. 43…