Facts of the case
The couple married in 2001, had been separated since 2016 and a petition for divorce had been filed since November 2018. The proceedings lasted four years and four months before the main hearing was scheduled.
The parties owned five properties in four different countries. The financing of the properties and of the construction work involved were disputed, where the proceeds from the sale of the inherited properties had gone.
The 83-year-old husband wished to marry his long-term partner. He had been living with her for around five years. He was in poor health: he was suffering from two illnesses (lung disease, leukemia) that were potentially fatal. His health was declining.
In dispute
It is controversial whether a partial judgment should be made on the divorce issue, while the ancillary consequences (in particular the division of matrimonial property) are adjudged later.
Procedural matters
The marriage was divorced in November 2021. The court of appeal of the Canton of Solothurn overturned the partial decision. The husband contested this court ruling.
Complaint
Among other things, he complained that the decision violated his constitutional right to marriage (Art. 14 federal constitution, Art. 12 ECHR) and to remarriage.
Considerations
The principle of the unity of the decision applies, according to which the decision on the divorce must also decide on its consequences (Art. 283 para. 1 Swiss code of civil procedure). According to the Federal Supreme Court of Switzerland, this can be deviated from if both spouses agree or if the interest of one spouse in a partial decision prevails (5A_728/2022 of May 17, 2023, consideration 2.1.1).
The lower court emphasized that the husband expected a higher compensation payment under matrimonial property law. Thus, he had an interest in an early conclusion to the proceedings (consideration 2.2).
The Federal Supreme Court held that the grounds for divorce were undisputed. The lower court had given greater weight to the wife’s interest in a uniform decision. Even if the husband submitted numerous requests for deadline extensions, this should not be considered to his disadvantage. The long duration of the proceedings should not be blamed on the parties. The court has to proceed efficiently (consideration 2.5).
Five properties had to be financially broken up, four of which were located abroad. This division of marital property is time-consuming. Differences can delay the divorce by several years. When forecasting the duration of the proceedings, the lower court disregarded the husband’s advanced age and life expectancy or life-threatening illness. The spouse’s wish to marry his long-term partner was justified. His interest in an early divorce outweighed the wife’s interest in issuing a uniform divorce decree (deliberation 2.5).
Conclusion
The marriage was divorced.
Note
Marriage as an estate plan may be an important interest in obtaining a partial judgment.
Marriage can be useful to protect a long-term partner. Cohabiting partners have no legal right to inherit in Switzerland, whereas a spouse has a statutory entitlement (cf. Art. 470 para. 1 Swiss CC) and do not pay inheritance tax.