Divorce Lawsuit: Jurisdiction of the Court at the Last Common Residence of the Married Couple

Facts

The spouses Matter lived in Wädenswil from 1951, where the husband owned a large single-family house. In 1965, the husband rented a one-room apartment in Zurich, to which he withdrew, according to his own account, when marital tensions arose. He claims to have given up the apartment in Zurich on October 1, 1966 and resumed cohabitation. However, after a few months, he rented another one-room apartment in Zurich. After a dispute at Christmas 1967, he did not return to the marital home.

On August 18, 1969, the husband filed for divorce at the District Court of Horgen, in whose jurisdiction Wädenswil is located. The District Court of Horgen and the High Court of the Canton of Zurich dismissed the claim, as the plaintiff had been residing in Zurich since 1967, not in Wädenswil.

Considerations

The Federal Supreme Court declares the District Court of Horgen as having jurisdiction. According to Art. 144 of the Swiss Civil Code (ZGB), the judge at the domicile of the plaintiff spouse is competent for the divorce lawsuit. The decisive factor is the domicile that the plaintiff spouse had at the time of filing the lawsuit.

The Federal Supreme Court clarifies that in assessing whether someone is staying at a place with the intention of permanent residence, the focus is not on the person's internal will, but on what the observable circumstances objectively indicate as the intended purpose. The findings of the last cantonal instance on such circumstances are binding on the Federal Supreme Court.

The Federal Supreme Court assumes that…