Commencement of Maintenance Obligation after Divorce in Case of Partial Enforceability of the Divorce Judgment

Facts

The facts can be summarized as follows

• The parties were married in 1971.
• In 1996, the wife filed for divorce. The spouses then concluded a judicial agreement providing that the husband would pay the wife a monthly maintenance contribution of 2,000 Swiss francs during the separation period.
• In 2001, the court granted the divorce and awarded the wife post-divorce maintenance.
• Both parties appealed this decision. The Court of Appeal ordered the husband to pay post-divorce maintenance contributions as of March 1, 2001.
• The husband appealed this decision to the Federal Tribunal.

Considerations

The Federal Tribunal dismissed the husband's appeal. It considered that, even if the divorce judgment was only partially enforceable, the court of first instance could, in the exercise of its discretion, set the commencement of the post-divorce maintenance obligation at the date of this partial enforceability. This also applies when the judge of interim measures has already awarded a maintenance contribution beyond this date.

Indeed, the Federal Tribunal held that the legislator, in introducing Art. 126 para. 1 CC, did not intend to restrict the court's discretion in determining the commencement of the post-divorce maintenance…