Facts
On 13 July 1978, Pierina R. filed an action for judicial separation based on Art. 142 CC. During the investigation proceedings before the district court, the parties concluded an agreement in which they requested the court to pronounce their divorce on the grounds of deep and irremediable disunion, and settled the ancillary consequences of the separation. The plaintiff requested that the divorce be pronounced "on mutual request in accordance with Art. 142 CC respectively Art. 137 CC for an indefinite period". By judgment of 22 March 1979, the district court pronounced the judicial separation of the parties for an indefinite period pursuant to Art. 142(1) and 146 CC and settled the ancillary consequences of the separation. It rejected the plaintiff's request that the separation also be pronounced on the basis of Art. 137 CC, on the grounds that the separation agreement implied a waiver of invoking a ground for separation other than Art. 142 CC and that the plaintiff had no interest in establishing that the conditions of Art. 137 CC were also met.Considerations
The Federal Tribunal considers that the ground for divorce is not part of the operative part of the judgment, but falls within the considerations. Therefore, an appeal aimed solely at substituting one ground for divorce with another is not admissible, due to the lack of a grievance of the appellant. This case law only allows for an exception in the case of divorce on the grounds of adultery, due to the particular consequences attached to this ground, in particular the waiting period imposed on the guilty spouse. However, the Federal Tribunal abandons this exception, considering in particular that the waiting period is of no importance in the case…