Facts

Parties: Appellant ([A.] ) and Respondent ([B.] )

Courts: District Court of Baden, Higher Court of the Canton of Aargau, Civil Court, 2nd Chamber, Federal Supreme Court

Dates: Divorce 2015, decision of the District Court of Baden of April 20, 2019, decision of the Higher Court of November 12, 2019, appeal submission of December 23, 2019, judgment of the Federal Supreme Court of August 25, 2021

Main issue: Amount of post-marital maintenance and imputation of hypothetical income

Facts:

  • [A.] and [B.] married in 2002 and separated in 2015. The District Court of Baden dissolved the marriage and ordered [B.] to pay post-marital maintenance of CHF 5,487.-- per month until April 2029.
  • The Higher Court reduced the maintenance to CHF 290.-- as of June 2020.
  • [A.] appealed to the Federal Supreme Court and requested the restoration of the original maintenance amount.

Considerations

The Federal Supreme Court first examines the admissibility of the appeal and finds that it is admissible. The late submission of the appellant is considered irrelevant as it was filed after the appeal deadline and constitutes inadmissible genuine novae.

In legal terms, all complaints are admissible pursuant to Art. 95 ff. FSCA. The Federal Supreme Court applies the law ex officio and examines alleged violations of law with free cognition. The facts are established pursuant to Art. 105 para. 1 FSCA, whereby only obviously incorrect findings of fact can be challenged.

The appellant argues that the Higher Court has unlawfully substituted its discretion for that of the District Court. The Federal Supreme Court finds, however, that the Higher Court has unrestricted review authority pursuant to Art. 310 CPC and is therefore entitled to replace the discretion of the first instance, provided that this is substantively justified.

The imputation of hypothetical income of the appellant is controversial. The Federal Supreme Court states that in life-determining marriages, post-marital maintenance is determined according to the last standard of living and the capacity for self-support. Self-support has priority, and maintenance is only owed subsidiarily.

The Higher Court has affirmed the reasonableness and…