Facts

The parties have been opposing each other in divorce proceedings before the District Court of Zurich since November 2018. The respondent ([B.] , born 1948) has been represented by counsel since 15 May 2019. The appellant ([A.] , born 1962) was not represented by counsel from the end of January 2020 until mid-October 2020.

After the respondent filed her statement of claim on 11 May 2020, the District Court set the appellant a deadline by order of 25 May 2020 to file a written answer to the claim. After the deadline was extended twice, it lapsed unused. A further deadline was then set, which likewise lapsed unused after a single short extension had been granted. The notice of the consequences of default read: 'In case of default, the defendant is precluded from filing a written answer to the claim. The court may also issue a final decision without further submissions from the parties.'

On 19 October 2020 the District Court first issued an unreasoned judgment: it dissolved the marriage, denied post-marital maintenance, ordered the Foundation [C.] to transfer CHF 55'134.-- plus interest from 1 November 2018 from the appellant's vested benefits account to that of the respondent, and recorded the matrimonial property settlement as fully resolved.

An application by the appellant, filed on 20 October 2020, for restoration of the deadline to answer the claim was dismissed by the District Court; the appeal to the Obergericht was unsuccessful, and that decision was not challenged.

After the reasoned judgment became available, the appellant appealed to the Obergericht of the Canton of Zurich, requesting that the judgment be set aside and remitted to the District Court to continue the proceedings. By decision of 1 June 2021 the Obergericht declined to hear the appeal.

By civil law appeal dated 2 July 2021, the appellant asks the Federal Supreme Court to set aside the decision of the Obergericht and remit the matter for a new decision; in the alternative, to remit the matter to the District Court for a new decision, to hold a main hearing, or to set a deadline for the answer to the claim. No responses were requested.

Subject matter in dispute:

  • Validity of the notice of the consequences of default (Art. 223 in conjunction with Art. 147 para. 3 CPC)
  • Ripeness for decision of the first-instance divorce proceedings (Art. 223 para. 2 CPC)
  • Non-admission by the lower court of the appeal, which was based purely on a cassatory request

Considerations

Admissibility and scope of review: The civil law appeal is admissible against the final decision of the last cantonal instance (Art. 75, Art. 74 para. 1 lit. b, Art. 76 para. 1, Art. 100 para. 1 FSCA). The Federal Supreme Court examines violations of law ex officio (Art. 106 para. 1 FSCA), but only complaints that are sufficiently reasoned as to form. New submissions that were not raised before the lower court are inadmissible because of the principle of exhaustion of the instances, as are belated assertions regarding settlement negotiations and the respondent's private expenses. For constitutional and cantonal law complaints, the strict complaint principle applies (Art. 106 para. 2 FSCA); arbitrariness must be qualifiedly substantiated. Findings of fact can only be challenged where they are manifestly incorrect (Art. 97 para. 1, Art. 105 para. 1 FSCA). New facts and evidence (a signed application for legal aid, budget 2021-2024/25) are inadmissible, as the appellant has not shown any exception under Art. 99 para. 1 FSCA.

Notice of the consequences of default (Art. 223 in conjunction with Art. 147 para. 3 CPC): The duty to give notice of the consequences of default derives from good faith and is not a regulatory provision. A correct notice is in principle a precondition for preclusion, unless the party knew the consequences or should have known them with reasonable diligence, or the omission had no effect on the default. Merely citing the provision is not sufficient; the specific legal consequences must be set out. The requirements vary according to the party's legal knowledge. The appellant, relying on FSC 4A_381/2018, demanded a notice stating that only the plaintiff's assertions would be taken into account. The Federal Supreme Court confirms the view of the lower court that this decision is not relevant, since here, unlike in that proceeding, the principle of party presentation does not apply exclusively, but partly the limited principle of inquisition. Whether a differentiated notice would have been required remains open, since the appellant did not explain how a correct notice would have affected the outcome of the proceedings, and the lower court has binding findings that no effect is apparent (the appellant reacted promptly and later contested the claim). There is no violation of Art. 223 in conjunction with Art. 147 para. 3 CPC or of good faith (Art. 9 Cst.). The complaints of arbitrariness and of the right to equal treatment (Art. 8 para. 2 Cst., without direct third-party effect) do not meet the requirements of substantiation.

Ripeness for decision (Art. 223 para. 2 CPC): Ripeness for decision exists where the…