Facts
The complainant, [X.] (husband), and the respondent, [Y.] (wife), were in divorce protection proceedings before the President of the District Court II of Hochdorf. The court decided on January 9, 2004, that the parties had been living apart since March 21, 2003, and authorized them to continue living apart indefinitely pursuant to Art. 175 CC. The husband was required to contribute to the maintenance of the wife personally, starting from April 1, 2003, on a monthly basis and in advance, with CHF 1,450.--, and from July 1, 2004, with CHF 1,700.--.
The High Court of the Canton of Lucerne partially upheld the husband's appeal, obliging him to pay the wife a monthly, payable in advance, and bearing interest at 5% after maturity, maintenance contribution of CHF 1,450.-- for the period from April 14, 2003 (date of the request) to June 30, 2004, and thereafter CHF 1,500.--.
The husband filed a constitutional complaint, requesting that item 5 of the high court's decision be revoked insofar as it awarded the maintenance contribution to the wife personally with retroactive effect from April 14, 2003, until the decision became final.
Considerations
The Federal Court examined the constitutional complaint and concluded that the principle of disposition applies in divorce protection proceedings. The complainant argued that the obligation to pay personal maintenance contributions to spouses generally begins with the entry into force of the judgment, unless the court determines a different date.
However, the Federal Court found that the regulation of post-marital maintenance (Art. 126 CC) cannot be applied by analogy to the contribution after the dissolution of the joint household during marriage (Art. 175 CC in conjunction with Art. 176 para. 1 no. 1 CC). Art. 173 CC stipulates that the court sets the contribution upon request and that the benefit can be claimed for the future and for the year prior to the submission of…