Facts
The case concerns a dispute over the paternity of a child, [D.], born on 3 November 1957, to the wife of [G.], who married [G.] in 1935. The husband, [G.], brought an action for disavowal of paternity on 3 December 1957, alleging that he had not had intimate relations with his wife since the birth of their first child in 1950 and that the child [D.] was the result of an adulterous relationship between his wife and a certain R.
The court of first instance ruled that if [G.] swore that he had not had intimate relations with his wife between 8 January and 8 May 1957, it would be established that [D.] was not the legitimate child of [G.] but the adulterous child of his wife. If [G.] did not swear, the application would be dismissed.
The court of appeal dismissed the application, considering that the impossibility of G.'s paternity was not established, as there was no evidence that the spouses had not had intimate relations despite their cohabitation.
Considerations
The Federal Court examined the question of whether the impossibility of G.'s paternity could be established. It considered that the moral impossibility of cohabitation at the time of conception was not established, as the spouses cohabited and shared common activities.
The Federal Court also examined the question of whether G.'s oath could be used to prove the absence of intimate relations. It considered that, according to article 158, paragraph 1, of the Swiss CC, the judge must be convinced of the reality of a fact before being able to consider it as established.
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