Allocation of the Burden of Proof in the Liquidation of the Matrimonial Regime

Facts

This decision of the Swiss Federal Tribunal concerns the allocation of the burden of proof in the liquidation of the matrimonial regime. The main facts are as follows:

• The Court of Appeal added an amount of 30,000 Swiss francs to the community of acquests, originating from the sale of a real estate property belonging to the community.
• The defendant alleges that this constitutes a violation of federal law.

Considerations

The Federal Tribunal ruled that

• Art. 200 CC does not address the issue of the burden of proof when determining whether a property existed or not at the time of the dissolution of the matrimonial regime. Therefore, Art. 8 CC applies.
• The spouse who invokes the reunification to the acquests according to Art. 208 CC must prove not only that the property in question belonged to the other spouse at some point, but also what happened to it. A reversal of the burden…