Dismissal of the Divorce Petition Based on Malicious Abandonment or Definitive Breakdown of the Marital Bond

Facts

The C. spouses were married in 1928 and had two children. In March 1954, they agreed to a six-month separation, which could be extended. In August 1954, the wife refused to resume cohabitation. In November 1954, the husband filed for divorce based on Art. 142 CC. The court of first instance dismissed his claim in December 1955, considering that the conditions of Art. 140 CC were not met. In August 1957, the husband filed a new divorce petition, this time invoking Art. 140 CC and then Art. 142 CC. The court of first instance dismissed his claim again in July 1958. The cantonal court then granted the divorce under Art. 140 CC. The wife appealed to the Federal Tribunal.

Considerations

The Federal Tribunal upholds the appeal and dismisses the divorce petition. It considers that the conditions of Art. 140 CC are not met, as the summons provided for in para. 2 of this article was made prematurely. Furthermore, Art. 142 CC is not applicable, as the alleged abandonment is not the sole cause of the disunion, and there are no…