Facts
The plaintiff [X.] and the defendant [Z.] were married and had a child together. In the context of a marital protection procedure, [Z.] was ordered to pay maintenance contributions to [X.] and the child. [X.] sued [Z.] for outstanding maintenance contributions and received a certificate of loss of debt in the amount of CHF 38,175.20. The divorce judgment of May 21, 2003, established that the parties were separated in terms of property law. [X.] sued [Z.] again and requested provisional enforcement, which was granted by the Presidium of the Cantonal Court of Zug. [Z.] brought an action for a declaration that the claim asserted by [X.] did not exist.
The Cantonal Court of Zug found that [Z.] , taking into account a set-off claim of CHF 8,575, owed only CHF 29,600.20. The High Court of the Canton of Zug overturned the judgment of the Cantonal Court and found that the claim asserted by [X.] did not exist.
Considerations
The Federal Court had to decide whether the plaintiff could still claim the asserted maintenance contributions after the divorce judgment had become final. The plaintiff argued that the parties had not agreed on a balance clause and that the asserted claim for loss of debt was not of a property law nature, but rather to be considered as a marital law claim.
The Federal Court ruled that the maintenance contributions awarded to the plaintiff in the context of a marital protection procedure, but not paid, were covered by the finding in the divorce judgment that the parties were separated in terms of property law and could therefore no longer be claimed after the divorce judgment had become final. The plaintiff could no longer claim the asserted maintenance contributions because the parties were separated in terms of property…