Divorce: debt between spouses, equitable compensation on occupational pension benefits, post-divorce and adult child maintenance contributions, referral to the cantonal authority

Facts

Parties and courts: These are two appeals in civil matters against the judgment of the Civil Chamber of the Court of Justice of the Canton of Geneva of 13 June 2019 (C/26211/2013, ACJC/869/2019), which had reformed the divorce judgment of the Geneva Court of First Instance of 15 August 2018. The wife ([A.X.] , born 1963) and the husband ([B.X.] , born 1956) married in 1996 under the separation of property regime. They have three daughters, two of whom are adults ([C.] , born 1997, and [D.] , born 2001, still a minor at the time of the first-instance judgment), and the husband also has an adult daughter from a previous union.

Previous proceedings: The spouses separated in October 2010. By judgment of 9 November 2012 on protective measures for the marital union, the Court of Justice set a contribution of CHF 90'000 per month, less CHF 768'277.25 already paid. Several judgments on provisional measures subsequently modified the amount of the maintenance payments (judgments of 19 June 2015, 10 June 2016 and 18 April 2018). The wife filed a unilateral divorce petition on 11 December 2013.

First-instance judgment (15 August 2018): The Court pronounced the divorce, maintained joint parental authority over [D.] , awarded custody to the mother, set the father's visitation rights, set contributions for the two adult daughters, and dismissed the husband's claim of CHF 581'601.95 against the wife. It also awarded the wife a post-divorce contribution of CHF 15'000 per month until July 2021, then CHF 10'000 per month until July 2026, and ordered a transfer of CHF 2'883.50 from the husband's pension benefits to the wife's.

Judgment under appeal (13 June 2019): The Civil Chamber reformed the judgment by setting the contribution for [D.] at CHF 3'300 per month (1 December 2018 to 31 August 2019), then CHF 3'800 (September to December 2019) and CHF 4'350 from 1 January 2020, provided that her studies are serious and regular; the contribution for [C.] at CHF 5'350 per month from 1 December 2018; the transfer of CHF 12'966 from the husband's pension benefits and the payment of CHF 800'000 into the wife's vested benefits account as compensation; and a post-divorce contribution of CHF 16'000 per month from 1 December 2018 to 31 July 2021, then CHF 11'000 per month from 1 August 2021 to 31 October 2027.

Federal appeals: The wife (case 5A_679/2019) primarily requests a capital sum of CHF 4'999'999 or, in the alternative, CHF 40'000 per month in advance, and in the further alternative the annulment of the judgment on the post-divorce contribution. The husband (case 5A_681/2019) requests that no contribution be awarded to the wife or to [D.] , that [C.] 's maintenance be set at CHF 2'500 per month, that the compensation of CHF 800'000 be dismissed and that the claim of CHF 581'601.95 be granted to him; in the alternative, he requests annulment and referral. The respondents concluded that the appeals be dismissed.

Main issues: (1) the husband's claim for excess maintenance paid (Art. 165 CC); (2) equitable compensation for pension assets withdrawn in cash (Art. 124e CC); (3) the husband's wealth and income; (4) maintenance contributions for [D.] and [C.] (Art. 277 CC); (5) the wife's post-divorce contribution (Art. 125 CC), its amount, duration and form (Art. 126 CC); (6) qualified cohabitation; (7) the dies a quo of the maintenance payments.

Considerations

Admissibility and principles: The two appeals are joined (Art. 24 FCPA by reference to Art. 71 FSCA) because they target the same decision and involve the same parties. They are admissible in matrimonial pecuniary matters, the amount in dispute exceeding CHF 30'000 (Art. 72, 74 para. 1 let. b, 75, 76, 90 FSCA). The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA), but the appellant must substantiate its complaints (Art. 42 FSCA), and challenges to findings of fact are subject to the requirement of reasoned arbitrariness (Art. 105 para. 2, 106 para. 2 FSCA). Novas are excluded (Art. 99 FSCA) and the principle of exhaustion of cantonal remedies applies (Art. 75 FSCA). Where the cantonal authority has discretion (Art. 4 CC), the Federal Supreme Court exercises restraint.

Debt between spouses (Art. 165 CC): The Federal Supreme Court confirms the dismissal of the husband's claim of CHF 581'601.95. The compensation under Art. 165 para. 2 CC presupposes a contribution significantly exceeding ordinary maintenance obligations, and its beneficiary bears the burden of proof (Art. 8 CC) under a strict standard of proof. The cantonal court correctly held that the husband did not establish that all the expenses related to family maintenance (the "house purchase" item of CHF 99'706, expenses paid by credit card). These complaints are inadmissible for lack of sufficient substantiation. Obiter, the wife has no financial capacity to pay equitable compensation. The dismissal is therefore confirmed.

Occupational pension assets (Art. 124e CC): The cash withdrawal of the vested benefits (CHF 1'604'617.55 in February 2010, upon a definitive departure from Switzerland) makes sharing impossible (Art. 5 VBA). The husband must therefore pay equitable compensation (Art. 124e CC), the amount of which the judge fixes freely, starting from equal sharing but without schematism (Art. 4 CC). The benefit was used to repay a bank loan linked to family maintenance, while the husband had other substantial assets; the withdrawal therefore did not serve the purpose intended by the law, and the wife is not abusing her right. The arbitrariness complaints are largely inadmissible. The compensation of CHF 800'000 was not challenged as to its amount, and the cantonal court did not exceed its discretion.

Husband's wealth and income: The husband cannot be followed when he claims that his movable wealth is exhausted; it was for him to prove this fact, since he had wealth of CHF 5'200'000 in 2012 and had carried out significant sales (property at FFF for CHF 14'218'000, fund [K.] with a profit of approximately CHF 2'000'000). The cantonal court held movable wealth of CHF 6'000'000, plus CHF 2'150'000 in PPE instalments (which remain part of his wealth), for a total of CHF 8'150'000. The Federal Supreme Court corrects this amount by deducting the CHF 800'000 of compensation owed to the wife, resulting in determinative wealth of CHF 7'350'000. The 2% yield on this wealth is confirmed, as the rate falls within the cantonal court's discretion and the husband has financial expertise. The husband's monthly income is therefore corrected to CHF 46'581 (CHF 34'331 + CHF 12'250), instead of CHF 47'900.

Contributions for [D.] (Art. 133 para. 3, 277 para. 2 CC): The child, who had become an adult, did not approve the claims asserted by her mother for the period after her majority; she adopted her father's position. The mother therefore lost the standing to continue the proceedings for that period (ATF 129 III 55). The maintenance is due only until 31 January 2019; the child may bring a claim directly against her father.

Contributions for [C.] (Art. 277 para. 2 CC): The obligation to maintain an adult child in training depends on equity, the training having to be completed within normal time limits. The Federal Supreme Court upholds the complaint concerning the schooling costs at KKK (Great Britain), because the fact that the child studies abroad does not mean that the costs must be borne by the father; the case is referred back to examine whether there are legitimate reasons for training abroad. The other complaints (rent, health insurance, current expenses) are inadmissible. The complaint concerning the child's contribution through work is dismissed, as her studies do not reasonably allow it.

Qualified cohabitation (Art. 125 CC): The wife's relationship with [V.] does not constitute qualified cohabitation. The partners do not share a common household (residences 500 km apart), the sums received are repayable loans, and the spiritual component does not reach the intensity of a marriage. The right to be heard and the right to evidence were not violated, because the order refusing the hearing of [D.] was not immediately appealable and the husband did not renew his request before the appellate authority.

Wife's contributory capacity (Art. 125 CC): After a fourteen-year marriage and an absence from the labour market since 1996, the wife, aged 55 (then 57), cannot reasonably be required to resume gainful employment. The Federal Supreme Court abandoned the "45-year rule" in favour of a concrete assessment (ATF 5A_104/2018). The Federal Supreme Court reviews only a violation of this broad…