Facts

Parties:

  • Appellant ([A.] ): Husband, represented by attorney Kathrin Obwegeser.
  • Respondent ([B.] ): Wife, represented by attorney Regula Bärtschi.

Courts:

  • District Court Zurich, 10th Division: Issued the cost advance order and dismissed the applications for a court cost advance and legal aid.
  • Court of Appeal of the Canton of Zurich, II. Civil Chamber: Dismissed the appeal and complaint of the appellant.
  • Federal Supreme Court, II. Civil Law Division: Examined the complaint of the appellant.

Facts:

  • The spouses [A.] and [B.] have been living separately since June 2018.
  • The wife applied for a protection order in July 2018, which was settled in December 2018.
  • The husband filed for divorce in June 2020 and requested the termination of child support as well as a court cost advance from the wife.
  • The District Court dismissed the applications for a court cost advance and legal aid and ordered the husband to pay a court cost advance.
  • The husband appealed the dismissal of his applications to the Court of Appeal, which also dismissed the appeal and complaint.
  • The husband then filed a complaint with the Federal Supreme Court, which was also dismissed.

Considerations

The Federal Supreme Court examines ex officio and with full cognizance whether a remedy is admissible (Art. 29 para. 1 FSCA). The appeal in civil matters is only admissible if a question of law of fundamental importance arises (Art. 74 para. 2 lit. a FSCA). The appellant alleges that such a question arises. It does not need to be clarified whether this is the case, as the cognizance of the Federal Supreme Court to review a decision on the provision of a court cost advance for the divorce proceedings within the framework of an appeal in civil matters is the same as in the case of the subsidiary constitutional complaint.

The procedural need is assessed on the basis of the overall economic situation of the applicant (BGE 141 III 369 E. 4.1). This includes not only income but also assets (BGE 124 I 97 E. 3b). The actual financial means and financial obligations must be weighed against each other (BGE 135 I 221 E. 5.1). The decisive factor is generally the time of the application. The claim of a spouse to the provision of a court cost advance, also referred to as "provisio ad litem," is rooted in the marital duty of assistance and maintenance (Art. 159 para. 3 and Art. 163 CC).

The appellant complains that the cantonal instances attributed to him a bank balance existing more than two years ago as hypothetical assets. The Court of Appeal states that the financial circumstances before the commencement of the proceedings are relevant. The appellant argues that the Court of…