Facts
The present judgment concerns a public law appeal against a decision of the Cour de justice of the canton of Geneva which refused to order protective measures of the marital union on the grounds that the parties had been separated for a long time and should rather institute divorce or legal separation proceedings. The facts are as follows: Mr. filed a request to modify the protective measures of the marital union against his wife, Mrs. M. The parties have been de facto separated since 1984 and do not envisage resuming cohabitation. The Cour de justice considered that the "modification" procedure initiated by Mr. was no longer relevant and referred the parties to take more appropriate action, i.e. to institute divorce or legal separation proceedings.Considerations
The Federal Tribunal considers that the Cour de justice committed an arbitrary act in refusing to consider the request for protective measures of the marital union. Indeed, Arts. 172 et seq. CC provide that the judge must order such measures, even when the breakdown of the marital union appears irreparable and the spouses have been de facto separated for a long time.
The judge cannot refer the parties to divorce or legal separation proceedings, as this would constitute an inadmissible interference in the sphere of autonomy of the spouses. The decision of the…