Modification of a divorce pension by the appellate court without a corresponding party application

Facts

The present case concerns a constitutional appeal against a judgment of the High Court of the Canton of Aargau. The High Court had, in divorce proceedings, modified the maintenance pension awarded by the lower instance in accordance with Art. 152 of the Swiss Civil Code (ZGB) to one under Art. 151 para. 1 ZGB, without either party having filed a corresponding application.

The appellant, the husband, complained in his appeal of a violation of Art. 4 of the Swiss Federal Constitution (BV) due to the disregard of procedural principles (prohibition of reformatio in peius, principle of party disposition) by the High Court.

Considerations

The Federal Supreme Court upheld the appeal. It stated that the prohibition of reformatio in peius, according to which an appellate court may not modify the contested decision to the detriment of the party who filed the appeal, is a clear and undisputed legal principle. By modifying the maintenance contribution contrary to this principle from a pension under Art. 152 ZGB to one under Art. 151 para. 1 ZGB, without a party having filed a corresponding application, the High Court had violated Art. 4 BV.

Furthermore, the Federal Supreme Court also saw a violation of the principle of party disposition under § 2 of the Swiss Code of Civil Procedure (ZPO), according to which the…