Facts
The dispute opposes Walter and Maria H. in the context of divorce proceedings pending since 1984. As part of the provisional measures, Maria H. requested the court of first instance to prohibit her husband from disposing of assets located in Switzerland without her consent and to register a prohibition on the disposal and encumbrance of real estate located in the canton of Grisons. This request was rejected by the president of the court. Maria H. then appealed to the Court of Appeal of the canton of Berne, which also rejected her request.
Maria H. then filed a public law appeal with the Federal Tribunal, requesting the annulment of the decisions of the cantonal instances.
Considerations
The Federal Tribunal upholds the appeal. It considers that Art. 178 CC, which also applies by analogy in the context of provisional measures in divorce proceedings, allows the judge to subordinate the disposal of certain assets to the consent of a spouse, when this is necessary to ensure the economic foundations of the family or the execution of a financial obligation arising from the marital community.
Although the judge cannot require strict proof of the existence of a serious and current risk, he must be satisfied with a mere probability. In this case, the appellant has provided objective elements to consider as…