Facts
This case concerned the wife's continued residence in the family home during the divorce proceedings. The Cantonal High Court of Zurich had ordered the husband to pay the wife monthly maintenance contributions of CHF 10,000 until she moved out of the apartment. From the time of her move-out, the amount was to be reduced to CHF 7,000. Furthermore, the Cantonal High Court extended the deadline for the wife's move-out from the family home until 31 July 1988.
The wife filed a constitutional appeal against this decision with the Federal Supreme Court, as she was of the opinion that the Cantonal Court of Cassation of Zurich had not taken into account Art. 169 of the Swiss Civil Code, which regulates the protection of the family home.
Considerations
The Federal Supreme Court stated that a spouse can also invoke Art. 169 of the Swiss Civil Code during the divorce proceedings to protect the rights to the family home. However, this protection loses its justification if the spouse has definitively left or must leave the home and there is no prospect of the spouses living there together again.
In the present case, the decision on the separation under Art. 145 of the Swiss Civil Code was of considerable importance with regard to Art. 169 of the Swiss Civil Code. Even if no specific order was made regarding the family home within the framework of the provisional measures under Art. 145 of the…