Facts
S. (born in 1950) has been married to P. (born on February 8, 1945) since 1974. After the separation that occurred in 2000, she filed for divorce on December 7, 2005 and requested, among other things, the equal division of her husband's pension fund assets. He had worked for the company J. AG until the end of January 2002. His termination benefit was transferred to a vested benefits account with the UBS AG vested benefits foundation in Basel.
On March 22, 2005, P. requested the UBS AG vested benefits foundation to settle his vested benefits account and pay out the balance to him. In response, S.'s legal representative contacted the UBS AG vested benefits foundation on April 12, 2005, requesting that the payout request not be granted, as the wife did not consent to it and her husband had not yet reached retirement age. The UBS AG vested benefits foundation took the position in its reply of April 14, 2005 that the husband was requesting the payout of the retirement assets; since there was no cash payout of a termination benefit, the consent requirement did not apply. On April 19, 2005, the wife's legal representative obtained an ex parte injunction from the District Court of Liestal, ordering the UBS AG vested benefits foundation not to pay out the retirement assets in the vested benefits account to the husband. On the same day, the UBS AG vested benefits foundation informed the District Court of Liestal that the vested benefits account had been closed as of April 5, 2005 due to reaching the terminal age, and the balance of CHF 434,077.10 (of which CHF 137,143.90 were BVG benefits) had been transferred to the husband's unrestricted account.
Considerations
The Federal Supreme Court dismisses the appeal. Pursuant to Art. 16 para. 1 of the Ordinance on Vested Benefits (FZV), retirement benefits from vested benefits policies and vested benefits accounts may be paid out no earlier than five years before and no later than five years after…