Decision on Interim Measures in Divorce or Legal Separation Proceedings

Facts

The parties, of Swiss nationality, have been married since 3 February 1951. They established their domicile in Madrid in April 1951, where the husband still works as an engineer. Difficulties quickly arose in the couple, according to the husband due to the wife's mental illness, and according to the wife due to the husband's fault in working for years to obtain a divorce. In April 1957, the spouses concluded a one-year separation agreement, under which the wife could choose her place of residence, except for Madrid. The wife then settled in Barcelona for about three months. On 15 July 1957, she went to Madrid to spend her vacation there with the children, but the husband refused to let her enter the marital home. The wife then filed a request for interim measures with the judge in Solothurn, but he refused to consider the matter on the grounds that she did not have her domicile in that canton. The wife then appealed against this decision to the Cantonal Court of Solothurn, which finally accepted the jurisdiction of the Solothurn judge. The husband, for his part, filed a request for interim measures with the judge of his place of domicile, in Nidwalden, who granted his request.

Considerations

The Federal Tribunal considers that when the territorial jurisdiction for the main proceedings is contested or doubtful, the judge seized of a request for interim measures must at least examine summarily whether he has jurisdiction to hear the main action, and reject the request for interim measures if he is manifestly incompetent. In the present case, although there were doubts about the jurisdiction of the Solothurn judge, it could not be considered with certainty that he was manifestly incompetent. The Solothurn judge should therefore have either ruled on the request for interim measures or clarified the relevant facts for the question of jurisdiction.

With regard to territorial jurisdiction, the Federal Tribunal considers that, since the parties are of Swiss nationality, the question of whether the wife had acquired a separate domicile…