Facts
The plaintiff and the defendant married in 1981 and had two daughters. After a separation phase, the marriage was divorced in 2000. In the divorce judgment, the plaintiff undertook to pay the defendant a post-marital maintenance contribution of CHF 5,800.-- per month. The plaintiff requested an amendment of the divorce judgment and a reduction of the maintenance contributions due to a loss of income in 2001. The court of first instance overturned the initial judgment and dismissed the complaint.
The plaintiff filed a federal appeal and requested that his application for amendment of the divorce judgment be approved and the maintenance payments be reduced proportionally to the loss of income. The defendant demanded that the appeal be declared unfounded and the higher court judgment be confirmed.
Considerations
The Federal Court examined the admissibility of the appeal and found that the appeal against the higher court judgment in the amendment proceedings pursuant to Art. 129 CC is generally admissible. However, the court had to establish that the plaintiff did not meet the formal requirements for the justification of the appeal brief.
The Federal Court addressed the legal basis for amending a divorce judgment and found that the amendment of maintenance pensions is based on judicial discretion. The court examined the question of whether the plaintiff's loss of income constitutes a significant and lasting change in circumstances and whether the amendment of the maintenance pension is justified.
The court found that the plaintiff's loss…