Property Law Dispute after Divorce: Admissibility of Requests for Declaratory Judgment and Performance

Facts

The appellant and the respondent married in 1993 and had two children. They acquired a property in 1996, which they jointly inhabited. After the separation in 2004, the marriage was divorced and the property settlement was carried out. The respondent requested the determination of his separate property and the return of two paintings and a signet ring. The Court of Appeal of the Canton of Basel-Stadt partially upheld the appeal and ordered the return of one painting.

The appellant requests the Federal Court to confirm the decision of the Civil Court of September 15, 2010, or to refer the matter back to the Court of Appeal for a new decision. She complains of a violation of Art. 278 CPC and an inadmissible amendment of the claim.

Considerations

The Federal Court first examines the admissibility of the appeal. The total amount in dispute is CHF 18,313.-- and does not reach the statutory minimum amount of CHF 30,000.--. The appeal is therefore inadmissible.

The Federal Court then addresses the appellant's complaint that the Court of Appeal violated Art. 278 CPC by granting the respondent a dispensation from personal participation in the hearing. However, the complaint is belated, as the appellant and her lawyer were present at the appeal hearing and did not object to the respondent's dispensation.

The Federal Court then examines the appellant's complaint that the Court of Appeal allowed an inadmissible amendment of the claim. The Court of Appeal considered the respondent's request for determination of his separate property and return of two paintings and a signet ring to be admissible. The appellant complains that the Court of Appeal assisted the respondent and violated the principle of disposition.

The Federal Court concludes that the Court of Appeal rightly dismissed the appellant's complaint. The appellant did not raise her complaint in a timely manner and did not demonstrate that the Court of Appeal violated the principle of disposition.

The Federal Court then examines the appellant's complaint that the Court of Appeal violated Art. 317 para. 1 CPC by admitting new facts and evidence. The Court of Appeal admitted the new evidence in the appeal proceedings, as it was submitted promptly and the appellant did not demonstrate that she was prejudiced by the admission of the new evidence.

The…