Facts

Parties involved: A. (born in 1953) and B. (born in 1972), married in 1998 under the separation of property regime. Their daughter, C. (born in 2000), is of age.

Procedure: A. filed for divorce on 17 March 2020 with the district civil court of the Sense. The parties concluded a partial agreement regarding property law, but no agreement was reached regarding the other ancillary consequences.

Decision of the civil court: On 8 September 2022, the civil court pronounced the divorce. It granted B. a post-marital alimony of 1,300 francs per month for one year. It also noted that A. received a monthly BVG pension of 1,106.35 francs at the time of filing for divorce and that the balancing of rights acquired during the marriage in the context of professional pension provision must be carried out in accordance with Art. 124a CC. B.'s share in this BVG pension was set at 392.80 francs per month and the pension fund was ordered to pay a corresponding lifetime annuity. Finally, the civil court approved the partial agreement and noted that the parties had agreed to the separation of property, so that no claim under property law existed.

Appeal by B.: B. filed an appeal with the cantonal court of Fribourg. In addition to increasing her share in A.'s BVG pension, she requested that it be noted that A. had an amount of 225,602.20 francs (non-reimbursed advance for home ownership) to be offset against the pension capital to be shared, which was to be divided equally. Consequently, she requested that A. pay her 112,801.10 francs.

Decision of the cantonal court: The cantonal court admitted the appeal and amended the first-instance decision in accordance with B.'s requests, specifying that the amount of 225,602.20 francs was to be divided equally in accordance with Art. 124e para. 1 CC.

Appeal by A.: A. (the appellant) turns to the Federal Supreme Court. He requests, in substance, the confirmation of the first-instance decision or, failing that, the referral of the case to the previous instance for further investigation and new decision. B. (the appellee) requests the dismissal of the appeal. The cantonal court waived to take a position.

Considerations

The Federal Supreme Court first examines whether Art. 123 para. 1 CC, which provides for the equal division of advances for home ownership, is applicable. The cantonal court ruled that this article was not applicable, as the pension case had already arisen with A.'s retirement at the end of February 2018. It therefore applied Art. 124e para. 1 CC, which provides for appropriate compensation in the form of capital or annuity when the balancing of professional pension assets is not possible.

The Federal Supreme Court confirms that, under the separation of property regime, advances for home ownership made before retirement cannot be taken into account under property law. They must therefore be divided in accordance with Art. 124e para. 1 CC. The Federal Supreme Court rejects A.'s argument that the advance should have been considered…