Facts
Kaspar Schmid and Lotte Nussbaumer were married in 1945 under the ordinary regime of the union of property. In 1950, they entered into a marriage contract establishing the regime of the community of property between them. In 1961, Kaspar Schmid filed for divorce. In the context of the liquidation of the matrimonial regime, the main issue was to determine whether the real estate initially belonging to Kaspar Schmid's mother constituted a contribution of the latter or common property.Considerations
According to the Federal Tribunal, in the event of divorce, each spouse resumes their personal assets, i.e., their separate property (Eigengut), regardless of the matrimonial regime (Art. 154(1) CC). Under the regime of the community of property, the contributions of each spouse are resumed, while the profit of the marriage is divided between the spouses in accordance with the rules of their regime (Art. 164(2) CC).
The case law accepts that the legal definition of the wife's contributions (Art. 195 CC) also applies to the husband's contributions. Thus, the contributions of a spouse are the matrimonial assets that belonged to them at the beginning of the matrimonial regime or that accrued to them during the regime by succession or some other gratuitous title.
When the acquisition by gratuitous title is by succession, it has the legal object of the undivided hereditary share of the heir. The assets allocated in the partition to the heir-spouse take the place of this hereditary share. If they have the same value, they constitute a contribution in their entirety. If they are worth less, both the assets and the compensation received are contributions. If they are worth more, the acquisition is gratuitous only for the value…