Facts
During the divorce proceedings, A. X.-Y. filed a payment action against her husband with the district court of her domicile. She claimed payment of an amount of CHF 37,331.80 with interest at 5% since 25 May 1978. According to the plaintiff, this claim represented the balance of a fee inherited from her father, who had died in 1976 and had been mandated by the defendant for the construction of a vacation home. The district court dismissed the claim on the grounds that the prohibition of forced execution between spouses under Art. 173 para. 1 CC was opposed to it. The court of appeal upheld the plaintiff's appeal and ordered the district court to hear the case on the merits. The defendant appealed to the Federal Supreme Court.Considerations
The Federal Supreme Court considers that the question of whether a wife has an enforceable claim against her husband on her own property falls within the settlement of the matrimonial regime, which as a rule must be decided in the divorce judgment. Although the cantonal court initially accepted that this claim had to be raised in the divorce proceedings, it ultimately denied the necessary link between this claim and the divorce and recognized the competence of the ordinary judge to rule on this claim. This opinion cannot be followed. When the settlement of the matrimonial regime is not referred to a separate procedure, all claims relating to the matrimonial regime must be decided either in the divorce judgment itself or possibly in a supplementary procedure before the divorce…