Facts
The defendant and the plaintiff were married and have divorced. The single judge has divorced the marriage and regulated the consequences of the divorce, including maintenance payments. The defendant has appealed against the judgment and challenged the determination of the income and assets relevant for maintenance. The plaintiff has joined the appeal and requested an increase in the maintenance contributions owed to her. In his reply to the appeal, the defendant has reduced the maintenance contribution fixed in the first instance. The Cantonal Court of Schwyz has not considered the new maintenance claim raised in the reply to the appeal.
The defendant has appealed against this and argued that the cantonal regulation, which only allows new legal claims in the appeal, the appeal response or the rejoinder, violates Art. 138 para. 1 CC.
Considerations
The Federal Court has dismissed the appeal. It has established that Art. 138 para. 1 CC guarantees a federal minimum standard that each party can present new facts and evidence and thereby induced new legal claims at least once in the higher cantonal instance. The cantonal regulation, which only allows new legal claims in the appeal, the appeal response or the rejoinder, does not violate this federal law.
The Federal Court has further established that the provision in Art. 138 para. 1 CC merely sets out the principle of new facts and evidence and leaves the more detailed design to cantonal law. It is guaranteed that in the higher cantonal instance, new facts and evidence and thereby induced new legal claims must be admitted at least once.…