Facts
Parties and procedural history:
The appellant (husband, b. 1971) and the respondent (wife, b. 1974) have been married since 7 July 2021 and are parents of two adult children. On 8 September 2023, the husband filed a divorce petition with the Civil Court of Basel-Stadt, waiving post-marital maintenance, declaring the matrimonial property settlement settled by way of a lump sum, and waiving the equal division of pension assets. A criminal proceeding against the husband arising from an incident on 7 July 2021 led to his eviction from the shared home and to pre-trial detention. The Civil Court suspended the divorce proceedings on 14 November 2023 with reference to the pending criminal proceeding. The husband repeatedly applied for the lifting of the suspension, most recently by submission dated 13 January 2025, which the Civil Court rejected by decision dated 5 February 2025. The Appellate Court of Basel-Stadt dismissed the appeal against this decision by decision dated 19 May 2025 and ordered the husband to pay the court costs, which were, however, provisionally borne by the state treasury due to the granting of free legal aid. The husband filed an appeal with the Federal Supreme Court on 20 June 2025, seeking the lifting of the Appellate Court’s decision and the continuation of the divorce proceedings, alternatively limited to the divorce issue.
Legal framework:
The appeal concerns an interlocutory decision on the suspension of the divorce proceedings under Art. 126 CPC, which is qualified as a provisional measure within the meaning of Art. 98 FSCA. The appellant alleges a violation of constitutional rights, in particular the right to a hearing within a reasonable time (Art. 29 para. 1 Cst.), the right to marry (Art. 14 Cst. in conjunction with Art. 12 ECHR) and the prohibition of arbitrariness. In addition, he requests a partial decision on the divorce issue under Art. 283 para. 1 CPC.
Considerations
1. Admissibility of the appeal:
The appeal against the interlocutory decision on the suspension of the divorce proceedings is admissible as an appeal in civil matters under Art. 72 para. 1 FSCA, since the appellant claims an irreparable disadvantage consisting in an unreasonable delay in the proceedings. The Federal Supreme Court examines only the allegation of a violation of constitutional rights, as this concerns a provisional measure (Art. 98 FSCA). The appeal was filed within the statutory time limit (Art. 100 para. 1 FSCA).
2. Merits of the appeal:
The appellant argues that the suspension violates the right to a hearing within a reasonable time (Art. 29 para. 1 Cst.), since the criminal proceeding has long since been concluded and no timeframe for the filing of an indictment can be given. Moreover, the suspension until the filing of an indictment is inappropriate, as the indictment is merely the prosecution’s position and does not constitute a definitive decision. However, the lower court carried out a balancing of interests and found that the divorce proceedings depended on the criminal proceeding, since the husband based his applications in the divorce proceedings on the allegedly «groundless» allegations of the respondent. The lower court considered that without the conclusion of the pre-trial criminal proceedings, it could not be assessed whether the allegations were groundless. The suspension until the filing of an indictment was therefore not arbitrary, since the filing of an indictment presupposes that the prosecution considers the grounds for suspicion sufficient and the allegations can therefore hardly be qualified as groundless. The appellant does not address this argument, which is why the lower court’s balancing of interests cannot be qualified as arbitrary.
3. Partial decision on the divorce issue:
The appellant alternatively requests a partial decision on the divorce issue under Art. 283 para. 1 CPC. Such a partial decision requires that the ground for divorce is clear and that the dispute over…