Facts
The spouses P., of Austrian nationality, divorced in Austria in 1987, without the ancillary effects of the divorce having been settled. In 1988, the wife filed an action in Switzerland to complete the divorce judgment, in particular requesting the payment of a pension. In the context of this action, she requested provisional measures, including maintenance support. The court of first instance rejected this request, considering that Art. 145 CC was inapplicable. On appeal, the Court of Justice of the Canton of Geneva applied Art. 145 CC by analogy and ordered the ex-husband to pay provisional maintenance support. The latter filed a public law appeal against this decision.Considerations
The Federal Tribunal dismisses the appeal. It considers that the fact that Art. 64 PILA does not specifically govern jurisdiction and applicable law with regard to provisional measures in the context of an action to complete a divorce judgment does not preclude such measures from being ordered. The Federal Tribunal acknowledges that it is not arbitrary to apply Art. 145 CC by analogy in the context of such an action, in order to allow the judge to provisionally take the necessary measures, particularly with regard to family maintenance, pending the definitive settlement of the ancillary effects of the divorce.
According to the Federal Tribunal, the fact that a divorce judgment has become res judicata does not…