Application of Swiss paternity law in a paternity lawsuit filed in Switzerland

Facts

The case concerns a paternity lawsuit filed by a mother residing in Switzerland and her non-marital child against a man residing in Austria. The High Court of the Canton of Thurgau had initially affirmed the application of Austrian law, but then dismissed the claim by applying Swiss law.

The plaintiffs appealed to the Federal Supreme Court. They requested that Austrian law be applied, as it would be more favorable to them than Swiss law.

Considerations

The Federal Supreme Court states that Swiss law must be applied in principle if the paternity lawsuit is filed in Switzerland. This follows from Art. 312 of the Swiss Civil Code, which regulates the jurisdiction for such claims.

The Federal Supreme Court justifies this as follows

• Art. 312 of the Swiss Civil Code allows the paternity lawsuit to be filed at the domiciles of the parties in Switzerland. It follows that Swiss paternity law is applicable.
• The domicile of the defendant at the time of cohabitation is not a mandatory connecting factor for the applicable law. Rather, the domiciles of the parties at the time of filing the lawsuit are decisive.
• There is no reason to deviate from Swiss law just because the…