Facts
In pending divorce proceedings between spouses L., the wife requested the President of the District Court of Plessur to grant provisional measures, including the retroactive payment of a maintenance allowance from August 1987. The President of the Court rejected this request for retroactivity, considering that according to the prevailing practice, maintenance contributions could only be awarded from the beginning of the month of the application, i.e. June 1988. The wife then filed an appeal against this decision, which was rejected by the District Commission of Plessur.Considerations
The Federal Court considers that the possibility provided for in Art. 173 para. 3 CC of awarding maintenance payments retroactively up to one year before the filing of the application must also apply by analogy in the context of Art. 176 CC relating to separate living, as well as for provisional measures ordered under Art. 145 para. 2 CC. Indeed, there is no valid reason to treat these situations differently, since the marriage subsists in both cases and there may be an interest in attempting an amicable settlement.
Thus, the judge of the provisional measures, like the judge of the divorce proceedings, may award…