Continuation of the previously jointly maintained standard upon divorce at retirement age after nearly 50 years of marriage as a housewife couple

Facts

Parties and background: The parties, an Italian married couple (husband born in 1941, wife born in 1947), married in 1972 in Italy and subsequently lived in Switzerland. They led a classic housewife marriage with two adult children. The husband has been living in Bulgaria for years, while the wife continues to live in Switzerland.

Divorce proceedings: In his divorce claim, the husband requested a ruling that there was no mutual obligation to pay post-marital maintenance. The wife demanded a monthly maintenance contribution of at least CHF 814. The Regional Court ordered the husband to pay monthly maintenance of CHF 446 “for life or until resuming residence in Switzerland”. The Higher Court of the Canton of Bern dismissed the appeal against this ruling.

Appeal to the Federal Supreme Court: The husband filed an appeal in civil matters seeking to overturn the Higher Court’s judgment and a ruling that he owed the wife no post-marital maintenance. The Federal Supreme Court dismissed the appeal.

Financial circumstances after divorce: The husband has an OASIA pension of CHF 1,763 and an OPA pension of CHF 827 (after half division CHF 414). The wife receives an OASIA pension of CHF 1,729 and a converted OPA pension of CHF 329. After division of the OPA pension, both parties have an income of CHF 2,177 (husband) and CHF 2,058 (wife). The wife’s subsistence minimum was set at CHF 2,504 (including rent, health insurance, taxes, etc.), resulting in a shortfall of CHF 446. For the husband, the subsistence minimum in Bulgaria was calculated at around CHF 1,500, taking into account a purchasing power parity of 50% of Switzerland, leaving him with CHF 1,731 after deduction of the maintenance payment.

Considerations

Legal situation and life-long impact of the marriage: The marriage lasted nearly 50 years and was characterized by a classic role division in which the wife gave up her employment in favor of household and childcare. The cantonal courts recognized a marriage with a lifelong impact (cf. 147 III 249 para. 3.4.3). The previous case law, according to which post-marital maintenance generally lasts at most until the entitled party reaches the ordinary retirement age (147 III 249 para. 3.4.5; 141 III 465 para. 3.2.1), applies to cases in which the parties have not yet reached retirement age. These principles do not apply here, as both parties are long since of retirement age and the marriage lasted until retirement age.

Continuation of the jointly maintained standard: In the case of divorce at retirement age, case law recognizes a claim to continuation of the previously jointly maintained standard for a reasonable limited period, provided the marriage had a lifelong impact (147 III 249 para. 3.4.3). Limiting the maintenance obligation would not be justified in the present case, as the parties are 83 and 77 years old respectively and the marriage lasted almost 50 years. Therefore, the maintenance obligation lasts until the death of one spouse (Art. 130 para. 1 CC).

Husband’s objection: subsistence minimum and right of residence: The husband argued that the maintenance payment of CHF 446 would cause him to fall below the subsistence minimum in Bulgaria and would prevent his return to Switzerland due to residence law consequences (dependency on social assistance). This, he claimed, constituted a violation of Art. 10 para. 2 Cst. and indirect discrimination under Art. 8 paras. 1 and 2 Cst. He also argued that the two-step concrete method of calculating maintenance was inappropriate as it did not take his financial situation into account.

Reasons for dismissing the appeal: The two-step concrete method is the…