6.6.26

5A_684/2024: Reasonable duration of post-marital maintenance (official publication)

by Dominik Keller on 6 June 2026

In the judgment 5A_684/2024 of 23 April 2026 which is due to be published, the Federal Supreme Court comments on the reasonable duration of post-marital maintenance.

Summary

The spouses A. (born 1971) and B. (born 1973) married on 12 April 1996. They have twin daughters, C. and D. (born 2003), and a daughter, E. (born 2007). The spouses have been living apart since early 2014. Their marriage therefore lasted just under 18 years. The wife was already in poor health at the time of the marriage. A certificate from her GP confirms that she suffers from Crohn’s disease. As early as 1996, her entire colon had to be removed, which had far-reaching consequences for her bowel function and prevented her from undertaking predictable, regular work. In 2001, she gave up paid employment; from that point onwards, she took care of the household and, following the birth of the children, assumed responsibility for their care and upbringing. In 2005, the Disability Insurance (IV) determined an 85% incapacity for work, and in 2019, the pension fund established a degree of disability of 58%. The Federal Supreme Court describes the impact of the marriage on her life as “obvious”, even in the light of more recent case law (E. 3.4 and E. 7), and takes the opportunity to comment on the appropriate duration of post-marital maintenance.

The Cantonal Court of St. Gallen awarded the wife post-marital maintenance from the date the divorce decree became final until the husband reached retirement age at the end of May 2036. Accordingly, even after reaching retirement age, the wife was to receive a personal maintenance payment of CHF 1,400. In terms of duration, the Cantonal Court thus upheld the maintenance payment set out in the judgment of the District Court of St. Gallen, but increased it by around CHF 750 per month for the final phase. The Cantonal Court based its decision in particular on the couple’s marriage of just under 18 years, their three children, and the wife’s health problems – which were already known at the time of the marriage – which, combined with her advanced age – at the time of the Cantonal Court’s decision, the wife was around 51 years old – effectively made it impossible for her to return to work. The husband appealed against this decision to the Federal Supreme Court, contesting in particular the claim that the marriage had shaped their lives and, in the alternative, arguing that maintenance was due only until November 2025 at the latest (when the youngest daughter would reach the age of majority). He contended that the maintenance obligation should in any event not last longer than the period of the marriage.

The Federal Supreme Court rejected this argument, upheld the cantonal court’s judgement and held that “the appropriate duration of post-marital maintenance must be determined on the basis of the criteria relevant to the individual case in accordance with Article 125(2) of the Swiss Civil Code, and these must be weighed up in the context of an overall assessment in accordance with the specific circumstances.” Clarifying BGE 150 III 305, para. 5.7.1, the duration of the post-marital maintenance obligation is not to be determined primarily on the basis of the duration of the marital relationship, but this is merely one of the factors to be taken into account. In other words, within the framework of a holistic assessment, the appropriate duration of maintenance may be short even in the case of a long-standing marriage if the marriage remained childless and the stay-at-home spouse was able to reintegrate into the labour market relatively quickly after the separation, whilst even in the case of a short marriage, childcare or other reasons for difficulties in (re)establishing an independent economic basis and could thus lead to post-marital maintenance being payable for a longer period than the marriage itself lasted. The key factors in determining the duration of maintenance on the basis of the criteria set out in Article 125(2) of the Swiss Civil Code are the extent of the sacrifices made in favour of the marital partnership by foregoing the pursuit of one’s own professional career, and the impact on the post-marital situation of the spouse claiming maintenance, who must reintegrate into the labour market, as well as that of the spouse liable for maintenance, who has benefited from the other spouse’s contributions in kind and may, where applicable, continue to enjoy positive effects well beyond the marriage (E. 5.4 and 5.3).

In E. 5.3, the Federal Supreme Court clarifies that in childless marriages where the spouses lived together, a shorter period of post-marital maintenance is appropriate, because in such cases the jointly agreed division of responsibilities ceases immediately upon separation and there is no corresponding synallagma, even though one party may, following the separation, no longer be able to resume their career at the same level as they would have been had they not given up or at least significantly reduced their gainful employment. Where the spouses have children together, the children have had a decisive influence on their lives, and the parent who provided for the family’s financial needs ultimately benefits for life from the other parent’s work in bringing up the children. In such cases, post-marital maintenance is not limited to the children’s age groups, but may also be payable beyond the school-stage rule, particularly where other factors such as health restrictions, advanced age or a long break from work come into play, which would make the (formerly child-caring) stay-at-home spouse’s entry into the labour market seem unrealistic. In this context, the duration of post-marital maintenance may also take into account the extent to which continued childcare following the date of separation – within the framework of the school-age model – would delay full reintegration into the labour market and thereby create economic disadvantages compared with those faced by a stay-at-home spouse without children.

In this specific case, the Federal Supreme Court upholds the judgement of the Cantonal Court of St Gallen. It is precisely where one spouse’s health problems were ‘shared’ – that is, where the fate of one spouse became the shared fate of both – that these were already known to the other spouse at the time of entering into the marriage and had been borne jointly by them throughout their many years of married life. Given that, in the present case, no further childcare is provided following the divorce due to the children’s age, the running of a joint household has not existed since the separation some time ago, and there is no evidence that the husband could have significantly increased his income through the services in kind provided by his wife, a shorter duration of post-marital maintenance, based on the principle of post-marital solidarity, would have been conceivable,particularly as the period of separation during which financial maintenance was already being paid must be taken into account in the overall assessment, and even where childcare was provided at the time as part of a division of responsibilities, post-marital maintenance lasting until the maintenance debtor’s retirement may, depending on the specific circumstances, be inappropriate (E. 5.6).

Comments

The judgment 5A_684/2024, which is due to be published, clarifies BGE 150 III 305 insofar as the duration of the marriage could be understood there as the sole decisive ‘guideline’ for the duration of post-marital maintenance. It states that the duration of the marriage is not the sole decisive criterion for determining the appropriate duration of post-marital maintenance. Rather, all the criteria set out in Article 125(2) of the Swiss Civil Code (ZGB)in particular the division of responsibilities during the marriage, the duration of the marriage, the social status during the marriage, age and health, the extent and duration of childcare still to be provided, vocational training, as well as employment prospects and entitlements from pension schemes or, in the case of elderly persons, the ‘contribution to the welfare of the community within the limits of one’s means’ (Federal Supreme Court judgment 5A_356/2025 of 1 April 2026, para. 8.3 [scheduled for publication]). Although the Federal Supreme Court upholds the cantonal court’s judgement, according to which post-marital maintenance is payable until the spouse liable for maintenance retires, it notes that a shorter maintenance period would have been ‘conceivable’. This remark highlights the limits of discretion: even maintenance lasting until retirement is not a given and must be based on a comprehensive assessment of all the circumstances.

Of practical significance here is the distinction between a childless marriage where one spouse is a homemaker and a (homemaker) marriage with children. In childless marriages, the reciprocal arrangement regarding the division of responsibilities ends with the separation. As a rule, therefore, a shorter period of maintenance is appropriate. In marriages with children, the parent with custody often bears the financial consequences of the division of responsibilities for the rest of their life, whilst the parent who has provided for the family’s financial security benefits permanently from the child-rearing efforts of the parent with custody. Post-marital maintenance is therefore not limited to the school-age period, but may be payable beyond this if age, health or a long break from work make the former carer’s reintegration into the labour market seem unrealistic.

Post-marital maintenance therefore neither necessarily ends with the end of childcare obligations nor does it automatically continue until the maintenance debtor retires. The appropriate duration of post-marital maintenance is determined by a case-by-case assessment of the criteria set out in Article 125(2) of the Swiss Civil Code.

8.5.26

7B_766/2025: The principle of territoriality in cases of private bribery abroad

by David Meirich on 8 May 2026

In the judgment 7B_766/2025 In its judgment 7B_766/2025 of 7 April 2026, the Federal Supreme Court examined the principle of territoriality in relation to passive private bribery. The appellant had been found guilty after allegedly offering a job applicant in France, in the course of his professional activities, EUR 2,000 in exchange for a position as a chauffeur.

Any person who, as an employee, shareholder, agent or other auxiliary of a third party in the private sector, in connection with their professional or business activities demands, accepts a promise of, or accepts an undue advantage for themselves or a third party in return for an act or omission contrary to their duty or within their discretion, shall be punished with imprisonment for up to three years or a fine (Art. 322novies(1) StGB). of the Swiss Criminal Code).

Under Article 3(1) of the Swiss Criminal Code , any person who commits a felony or a misdemeanour in Switzerland is subject to the Swiss Criminal Code. A felony or a misdemeanour is deemed to have been committed where the perpetrator carries it out or fails to act in breach of duty, and where the consequence has occurred (Article 8(1) of the Swiss Criminal Code) . According to case law, in the context of international relations, it is generally necessary – in order to avoid negative conflicts of jurisdiction – to affirm Swiss jurisdiction even in cases without a close connection to Switzerland to affirm Swiss jurisdiction (E. 3.3).

In the present case, the defendant arranged an appointment by telephone from Basel with the job applicant for an interview abroad. To this end, the defendant travelled to France on the very same day in order to make the incriminating offer to the applicant. Thus, the defendant formed the intention to commit the offence in Switzerland and also commenced the commission of the offence in Switzerland by setting off on the journey to France, thereby establishing the jurisdiction of the Swiss criminal prosecution authorities (E. 3.4.2).

The Federal Supreme Court had to rule on BGE 104 IV 175 a similar set of facts. In that case, the defendant was accused of breaching trade secrets. The Federal Supreme Court considered that the defendant had formed the intentionto contact the European Commission whilst in Basel. Prior to this, contact had been established, and a meeting in Brussels had been arranged. The defendant subsequently set off on his journey to Brussels from Switzerland. From Switzerland, he also maintained further contact with the EC authorities following his visit to Brussels. The Federal Supreme Court held that, if not already through his prior activities, the commission of the offence had in any event commenced with the preparation and commencement of the journey to Brussels in accordance with the defendant’s plan. This had taken place in Switzerland. (E. 3.4.1).

Consequently, if a person in Switzerland decides to accept a bribe before travelling abroad to make the incriminating offer there, this establishes the jurisdiction of the Swiss criminal authorities, because the offence was committed or commenced within Switzerland (Art. 3 in conjunction with Art. 8 of the Swiss Criminal Code) . The defendant’s conviction therefore did not infringe the principle of territoriality and the Federal Supreme Court dismissed his appeal (E. 5).

28.4.26

5A_356/2025: Impact on Life in Late-Life Marriages (official publication)

by Jean-Michel Ludin on 28 April 2026

In the judgment 5A_356/2025 of 1 April 2026, which is due to be published, the Federal Supreme Court sets out criteria for assessing the impact on life in the case of a late-life marriage.

Summary

The parties married in May 2001 at the ages of 57 (wife) and 62 (husband) respectively. According to the findings of fact by the lower court, the parties had already been financially interdependent for several years prior to the marriage, and the wife was already receiving a disability pension at the time of the marriage. They lived apart from July 2016 onwards, meaning that the marriage lasted for around fifteen years as a cohabiting relationship. The couple had no children together during the marriage. The High Court affirmed that the marriage had been life-defining and ordered the husband to pay post-marital maintenance of CHF 2,000 per month for an indefinite period. The husband challenged this decision before the Federal Supreme Court, arguing in particular that the marriage should not be classified as life-defining.

The Federal Supreme Court first noted that post-marital maintenance, and thus also the question of whether the marriage had a defining influence on the couple’s lives, must be assessed in accordance with the open-ended list of criteria set out in Article 125(2) of the Swiss Civil Code. The presumptions previously used to indicate such a defining influence — notably that of the duration of the marriage — must be put into perspective and no longer carry absolute weight. In particular, a marriage is deemed to have had a defining influence on a person’s life if, on the basis of a shared life plan, one spouse has relinquished their economic independence for the benefit of the couple and has provided maintenance in a non-pecuniary form (E. 4.2).

Regarding the duration of the marriage, the Federal Supreme Court held that a marriage lasting around fifteen years could certainly be understood as ‘long-standing’ within the meaning of case law. Admittedly, it had on several occasions stated that a marriage must have been lived ‘for decades’. However, this was not to be understood as a rigid lower limit independent of the other criteria — otherwise, a presumption would once again be formulated, which was precisely what needed to be avoided (para. 8.1).

With regard to the specific nature of marriages entered into in later life, the Federal Supreme Court considered that, in marriages contracted only at an advanced age, the parties find themselves from the outset in a different situation to younger couples.In the case of late-life marriages, the relinquishment or restriction of financial independence often occurs not as a result of the marriage or childcare obligations, but in connection with reaching retirement age. The question of earning capacity therefore takes a back seat; what must be examined is whether other circumstances indicate that the marriage has had a significant impact on the couple’s lives. Here too, the decisive factor remains whether one spouse has contributed to the welfare of the marital partnership over many years and is therefore entitled to rely on the solidarity of the other spouse. Consequently, the husband’s complaints that there had been no long-standing traditional division of roles or that the parties had no childcare responsibilities are unfounded (E. 8.2.2) .

On the question of whether the wife had contributed to the welfare of the couple, the Federal Supreme Court referred to the financial interdependence of the parties (which the appellant had been unable to dispute), to the undisputed fact that the wife had managed the household, and to the fact that the appellant had continued to work for several years beyond retirement age and had benefited from this.The husband’s objection that this division of roles was not the result of a shared life plan but was due to circumstances (the wife’s disability) was rejected on two grounds: Firstly, it is hardly possible to define a life plan independently of the specific circumstances; secondly, the appellant thereby confirmed precisely that the spouses had consciously opted for the chosen lifestyle, taking into account the wife’s disability (E. 8.2.3).

With regard to health impairments, the Federal Supreme Court considered that the previous view – according to which a legitimate expectation of protection could also arise from a couple’s decision to marry whilst aware of one partner’s health problems – should indeed continue to be taken into account. However, even in the case of health impairment, the marriage itself is not the sole decisive factor. Rather, the decisive factor remains whether the spouse with the health impairment has contributed to the welfare of the marital partnership to the best of their ability, or whether their situation has been irreversibly altered by living together as husband and wife.In the present case, the wife’s state of health had an impact on the marital relationship simply because the spouses had chosen their way of life with this situation in mind. The wife had contributed to the well-being of the marital relationship to the best of her ability. Beyond that, however, there were no indications of a change in the wife’s situation brought about by the marriage (E. 8.3).

In the Federal Supreme Court’s view, the overall assessment was influenced by the long duration of the marriage, the parties’ financial interdependence, and the wife’s contribution to the marital relationship within the limits of her restricted capabilities. This was counterbalanced by the fact that the wife’s situation had otherwise not been significantly influenced by the marriage. In the given circumstances of a late-life marriage involving pre-existing disability, however, it was not decisive that the loss of earning capacity had not arisen as a result of the marriage. In view of the discretion vested in the trial court, the classification as ‘life-altering’ was therefore not open to criticism.

The appeal was upheld in part solely on the grounds of a manifestly incorrect calculation of the taxes affecting the wife’s needs (E. 11.3); in all other respects — in particular with regard to the life-altering nature of the situation and the award of maintenance for an indefinite period (E. 12) — it was dismissed.

Comment

In this judgement, the Federal Supreme Court sets out specific criteria for assessing the impact on a person’s life in the context of late-life marriage. Because the traditional criteria (giving up gainful employment due to marriage, a long-standing division of roles in favour of childcare, and the impossibility of returning to work) are typically not relevant in late-life marriages, the court emphasises a significantly more flexible criterion: the ‘contribution to the welfare of the community within the limits of one’s capabilities’. This criterion is likely to be demonstrable in practically every intact marriage. The only real hurdle to establishing a ‘significant impact on life’ therefore remains the duration of the late-life marriage, which must not be too short.

Consequently, based on Federal Supreme Court case law, it will be easier to affirm the ‘life-shaping’ aspect in marriages entered into in old age than in marriages concluded at the start of working life and from which children have been born. In such marriages, the Federal Supreme Court, as is well known, requires that a spouse “has given up their economic independence in favour of running the household and caring for the children, and that, after many years of marriage, it is no longer possible for them to resume their former professional position or to pursue another gainful occupation that promises similar economic success, whilst the other spouse was able to concentrate on their professional advancement given the division of marital responsibilities”.In the case of marriages entered into in old age, however, where the influence of the marriage on the spouses’ lives is structurally much less significant (career paths and economic status are already established before the marriage; the loss of earning capacity is due to age rather than the marriage), a mere contribution to the community within the limits of one’s capabilities is now sufficient. These differing requirements must be critically assessed: At the start of working life, when marriage with children most significantly alters the spouses’ living circumstances, the impact on their lives should not be treated more strictly than in the case of marriages between older partners — on the contrary, the requirements should be lower.

The clarification regarding the duration of the marriage is, however, to be welcomed: the phrase ‘for decades’ does not constitute a rigid lower limit. This is in line with Federal Supreme Court case 5A_801/2022 of 10 May 2024 (para. 5.3; partially published as BGE 150 III 305), where a marriage lasting only seven years, with a child in common, was classified as life-defining (see the earlier post on the swissblawg).

23.4.26

1C_592/2025: Calculation of time limits in building permit proceedings

by Jamie Lee Mancini on 23 April 2026

In the judgement 1C_592/2025 of 27 February 2026, the Federal Supreme Court addressed the procedural consequences of serving an administrative decision by A-Post Plus on a Saturday.

Facts of the case

The municipality of Kreuzlingen granted E. and F. (respondents) a planning permission, against which A., B., C. and D. (appellants) lodged an appeal. The appeal was partially upheld and the decision was sent to the parties on 25 April 2025 by A-Post Plus. The appellants, who were represented by a solicitor at the time, lodged an appeal with the Administrative Court of the Canton of Thurgau by submission dated 28 May 2025. The court did not admit the appeal, whereupon the appellants appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court upheld the reasoning of the lower court. The latter pointed out that the authorities are, in principle, free to choose the method by which they dispatch their orders and decisions. In particular, they may therefore also use the A-Post Plus delivery method. In the present case, the appeal decision was sent to all parties to the proceedings by A-Post Plus on Friday, 25 April 2025 and, according to Swiss Post’s tracking information, was delivered to the appellants on Saturday, 26 April 2025. The 30-day time limit for lodging an appeal therefore expired on 26 May 2025. The appeal was lodged on 28 May 2025, i.e. after the appeal period had expired. This period began to run upon delivery on 26 April 2025 and not, for example, only when the appeal decision was collected from the postbox. Finally, according to Federal Supreme Court case law, it is permissible to send a decision on a Friday, i.e. in the knowledge that the time limit would commence on a Saturday.

Against this background, the appellants’ argument was not valid: in their view, lawyers could not be expected to receive their post on a Saturday. This was unrealistic and, ultimately, presumptuous. However, according to the Federal Supreme Court’s reasoning, the appellants fail to recognise that lawyers are not expected to be obliged to receive their post on a Saturday. It simply means that the time limit is triggered by service on a Saturday and must be calculated accordingly.

The Federal Supreme Court further states that this is not altered by the Federal Act on the Service of Documents at Weekends and on Public Holidays (BBl 2025 2891), which was passed by the Federal Parliament. The purpose of this Act is to extend the provision already contained in the Civil Procedure Code (ZPO) – whereby notices setting time limits that are served at weekends or on public holidays are deemed to have been served only on the next working day – to all other relevant federal laws. Firstly, however, the Federal Council has not yet determined the date of its entry into force. Furthermore, the provision applies only to the relevant federal laws and not to cantonal rules of procedure – such as the relevant law of the Canton of Thurgau of 23 February 1981 on administrative justice, which is at issue here.

Against this background, the appeal was dismissed.

Note

The decision once again highlights the differing procedural rules across various areas of law. Whilst, within the scope of the Civil Procedure Code (ZPO), a time limit triggered by the service of a document on a Saturday only commences on the next working day (Art. 142(1)^bis ZPO), this does not (yet) apply in administrative proceedings. Lawyers, in particular, must therefore not only carefully check the duration of the relevant time limits, but also the rules governing how and from when these are to be calculated in practice.

23.4.26

4A_568/2024: Compliance with time limits in cases of deemed service, effect of the debt enforcement moratorium

by Michael Pötzi on 23 April 2026

In the judgment 4A_568/2024 of 2 April 2025, the Federal Supreme Court had to determine whether the Cantonal Court of Lucerne had been correct in refusing to hear the appeal against a first-instance decision on the lifting of the debt enforcement moratorium on the grounds that it had been lodged out of time.

Facts of the case

The appellant, A., was subject to debt enforcement proceedings for approximately CHF 2.13 million; on 7 December 2023, the District Court of Lucerne granted provisional lifting of the stay of enforcement. On 11 January 2024, A. lodged an appeal against this decision with the Cantonal Court of Lucerne, which, on 14 October 2024, declined to hear the appeal on the grounds that it had been lodged out of time. A. subsequently lodged an appeal with the Federal Supreme Court, seeking the setting aside of the Cantonal Court’s decision and a referral of the case back to the Cantonal Court for consideration on the merits.

Summary of the key considerations

Das Bundesgericht hält zunächst die einschlägigen Verfahrensregeln fest: Rechtsöffnungsentscheide ergehen im summarischen Verfahren und sind innert zehn Tagen mit Beschwerde anfechtbar; der zivilprozessuale Fristenstillstand gilt hierbei nicht (Art. 145 Abs. 2 lit. b ZPO), jedoch bleiben Betreibungsferien und Rechtsstillstand nach SchKG vorbehalten (Art. 145 Abs. 4 ZPO a.F. bis Ende 2024) (E. 3.2.1).

The Federal Supreme Court then clarifies the effect of service during the debt enforcement holidays. If, despite the debt enforcement holidays, a debt enforcement measure (in this case: service of the decision to lift the stay of enforcement) is carried out and it triggers a time limit for the debtor to take action, this does not result in nullity, but rather«suspensive effect».The debt enforcement measure does not take legal effect until the first day after the end of the debt enforcement moratorium; on that day, the time limit is triggered and begins to run on the following day (E. 3.2.3).

In the specific case, the Federal Supreme Court first affirms the presumption of service. The first-instance decision was sent by registered post on 11 December 2023 and notified for collection on 12 December 2023. As the appellant was required to expect service, service was deemed to have taken place on the seventh day following the unsuccessful attempt at service, in accordance with Article 138(3)(a) of the Civil Procedure Code; the extension of the collection period arranged by the appellant, A., with the post office is irrelevant in this regard (E. 3.3.1). Consequently, the item was deemed to have been served on 19 December 2023 by virtue of the presumption of serviceE. 3.3.1).

The crucial point, however, is that this (deemed) service fell within the debt enforcement holiday period. The Federal Supreme Court therefore applies the suspensive effect and treats the decision as having been served only on the day after the debt enforcement holiday period has expiredE. 3.3.2). As the debt enforcement holiday period (seven days before and seven days after Christmas, Art. 56(1)(2) SchKG) lasted until 1 January 2024, the first-instance decision was deemed to have been served on 2 January 2024; the ten-day time limit for lodging an appeal commenced on that day, began to run on 3 January 2024 and thus ended on 12 January 2024 (E. 3.3.2). As the appellant posted his appeal on 11 January 2024, it was lodged in good time (E. 3.3.2).

Decision

The Federal Supreme Court upheld the appeal, set aside the decision of the Cantonal Court of Lucerne to decline to hear the case, and referred the matter back to the lower court for consideration of the merits of the cantonal appeal (E. 3.4; Operative Part, para. 1).

Take-aways

• Appeals against decisions to lift the stay of enforcement: 10 days – and no suspension of time limits under civil procedure (Art. 145(2)(b) ZPO), but suspension periods under the Debt Enforcement and Bankruptcy Act (SchKG) remain relevant (Art. 56 et seq. SchKG; para. 3.2.1).
• Debt enforcement holidays do not ‘nullify’ service, but defer its effect: if service takes place (including deemed service) during a debt enforcement holiday, the service is not void; rather, it has a suspensive effect (E. 3.2.3). In practice: the decision is deemed to have been served only on the first day after the end of the debt enforcement holiday.

Further links:

• BGE 138 III 483: Classification of the decision to lift the stay of enforcement as an enforcement measure (para. 3.1.1)
• BGer 5A_383/2017: Deemed service in the case of an uncollected registered delivery of an enforcement document (para. 3.1.3)
• BGer 5D_130/2011: The Federal Supreme Court holds that the presumption of service under Article 138(3)(a) of the Swiss Code of Civil Procedure (ZPO) only applies if the person concerned could reasonably have expected to receive the document. This expectation presupposes pending proceedings; the relevant procedural legal relationship only arises once the matter is pending. With regard to the Debt Enforcement and Bankruptcy Act (SchKG), it further clarifies that debt enforcement proceedings suspended by a legal objection are only resumed after the legal objection has been set aside, and that the proceedings to lift the stay of enforcement constitute a new set of proceedings; therefore, following service of the payment order or following a legal objection, the debtor need not yet expect to be served with court documents from subsequent proceedings to lift the stay of enforcement (para. 2.1).

7.4.26

5A_24/2024: 50-50 division of pension assets despite a long period of separation (official publication)

by Jean-Michel Ludin on 7 April 2026

In the judgment 5A_24/2024 of 2 February 2026, the Federal Supreme Court clarfies that a long period of separation does not, in itself, constitute a valid reason to deviate from the principle of a 50-50 division of occupational pension assets. Nor is the fact that the pension assets were mainly accrued after the separation sufficient grounds for such a deviation.

Summary

The parties to the present proceedings were married in Switzerland in 2011. The marriage remained childless. The spouses separated after only about two years of living together. However, the wife did not file for divorce until July 2022 – some nine years after the separation.

The lower courts rejected the husband’s claim for a 50-50 division of the pension assets accumulated during the marriage, relying on Article 124b(2) of the Swiss Civil Code (ZGB). In particular, they cited the long period of separation compared to the short duration of the marriage, as well as the fact that almost all of the pension assets had been accrued after the separation. The Federal Supreme Court examined this line of argument in detail following an appeal by the husband.

With regard to the duration of the separation, the Federal Supreme Court referred to its case law handed down under the old law. According to this, claiming pension rights equalisation for the entire duration of the marriage, including the period of separation, cannot in itself be classified as an abuse of rights. The 50-50 division of pension benefits is based on the abstract criterion of the formal duration of the marriage and not on the specific circumstances of the spouses’ lives. Since the new law also relies on a formal criterion – the period between the marriage and the commencement of divorce proceedings – this case law may continue to be relied upon. Consequently, even a long period of separation relative to the actual duration of cohabitation does not, in principle, constitute in itself a valid ground within the meaning of Article 124b(2) of the Swiss Civil Code. In exceptional cases, a deviation may be considered if a spouse can prove that they refrained from bringing an earlier action for divorce for serious and objective reasons, in particular because they had legitimate grounds to fear their spouse’s reaction. The wife, however, had not put forward any such grounds (E. 3.3).

Furthermore, the Federal Supreme Court rejects the argument that the 50-50 division of the pension assets saved mainly after the separation runs counter to the purpose of pension rights equalisation. Even if this were in fact the purpose pursued by the legislature, the entitlement to pension rights equalisation remains unconditional and independent of proof of a marriage-related loss of pension rights or the division of responsibilities during the marriage. Furthermore, the wife was aware of her husband’s limited earning potential at the time of the marriage (E. 3.3).

Finally, the Federal Supreme Court also rejected the lower court’s reasoning that the husband still had over twenty years available to build up his pension assets. The unfairness of the division must be assessed by comparing the pension needs of both parties. The burden of proof for the existence of significant disadvantages lies with the party invoking the refusal of pension rights equalisation. The wife had not demonstrated such disadvantages, nor were any apparent: the wife was five years younger than the husband, earned a higher income and, for her part, had many years ahead of her to continue building up her second pillar pension (E. 3.3).

The Federal Supreme Court therefore upholds the husband’s appeal and orders the pension assets accrued during the marriage to be divided equally.

Commentary

Even under the old pension rights equalisation law, the Federal Supreme Court had held that claiming pension rights equalisation for the entire duration of the marriage, including the period of separation, could not be classified as an abuse of rights. Whether this case law remains valid under the new law — in particular, whether a long period of separation may constitute ‘good cause’ within the meaning of the new Art. 124b(2) of the Swiss Civil Code — had not yet been clarified by the highest court. The Federal Supreme Court has now answered this question in line with prevailing legal scholarship: even under the new law, a long period of separation does not in itself constitute a valid reason, as the division of pension assets continues to be based on the abstract, formal criterion of the duration of the marriage.

This judgement is to be welcomed. It prevents the statutory division of pension assets accrued up to the commencement of divorce proceedings from being undermined by the indirect method of taking the ‘actual’ duration of the marriage into account. Anyone who, knowing that they have been separated for a long period, chooses to maintain the formal marriage would have had it in their own hands to bring about the end of the period relevant for the division of pension rights by filing for divorce. A significant loophole remains in the form of the exceptional scenario outlined by the Federal Supreme Court, where a spouse can prove that they refrained from filing for divorce earlier for serious and objective reasons. In practice, this exception could prove particularly significant in cases involving domestic violence or comparable situations of dependency. However, given the Federal Supreme Court’s restrictive approach, such exceptional circumstances will only be recognised with great caution.

Finally, it is significant to note that the entitlement to a 50-50 division of pension assets exists irrespective of proof of a specific, marriage-related loss of pension rights. This clarification is of considerable practical relevance, particularly in childless marriages without a traditional division of roles.

31.3.26

4A_286/2025: Appeal against a TAS arbitration award — agreed requirements for arbitrators do not constitute grounds for appeal

by Michael Pötzi on 31 March 2026

The case stems from a dispute under association rules in the 1st League Classic (2022/2023 season). Following a 2–0 defeat to FC B, FC A demanded the match be annulled and a 3–0 forfeit result awarded on the grounds that too many players had not been trained locally. The bodies of the Swiss Football Association (SFV; First League Committee, Appeals Commission) rejected the claim. The sole arbitrator of the CAS, to whom FC A. had appealed, also dismissed the appeal on 17 May 2023; the subsequent civil appeal lodged against this decision was unsuccessful before the Federal Supreme Court on 14 February 2024 (4A_628/2023). Subsequently, FC A. lodged an application for review with the Cantonal Court (VD) against the CAS award, arguing that, contrary to the SFV statutes, the sole arbitrator was not resident in Switzerland but in Germany. The Cantonal Court dismissed the application for review on 3 February 2025; FC A. lodged an appeal against this decision with the Federal Supreme Court. The Federal Supreme Court dismissed the appeal.

Summary of the key considerations

With regard to the legal classification, the Federal Supreme Court first emphasises the exhaustive nature of the grounds for review under the Swiss Code of Civil Procedure (ZPO). The grounds for review are exhaustively regulated both for state decisions (Art. 328 ZPO) and for arbitral awards (Art. 396 ZPO). In the case of arbitral awards, Article 396(1)(d) of the ZPO refers solely to the ground for recusal set out in Article 367(1)(c) of the ZPO, i.e. justified doubts as to independence or impartiality. Other grounds for recusal under Article 367(1) of the ZPO are not available for appeal (E. 4.3).

Consequently, the Federal Supreme Court classifies the residence requirement laid down in the SFV statutes as a ‘requirement agreed by the parties’ within the meaning of Article 367(1)(a) of the ZPO. The mere absence of such requirements agreed under contract or association law does not constitute grounds for an appeal on points of law. This applies even where the requirement – as in the present case – is expressly laid down. (E. 5.1)

The Federal Supreme Court also rejects any attempt to circumvent the statutory restriction on the revisio propter nova (Art. 396(1)(a) of the Swiss Code of Civil Procedure). The absence of an agreed requirement cannot be ‘disguised’ as a ‘new fact’ in the appeal. In the present case, moreover, there was no sufficient demonstration of its relevance; the alleged residence abroad would have been apparent in the arbitration proceedings had due care been exercised (E. 5.2).

Finally, the Federal Supreme Court rejects the existence of justified doubts as to the independence or impartiality of the sole arbitrator on the grounds of his residence abroad, particularly as the appellant had proposed the sole arbitrator himself. Consequently, the sole ground for recusal subject to appeal under Article 396(1)(d) of the Swiss Code of Civil Procedure (ZPO) in conjunction with Article 367(1)(c) of the ZPO is absent (E. 6).

From a procedural perspective, the Federal Supreme Court further notes that disputes concerning the sporting registration of football clubs are, in practice, of a property law nature, as they regularly involve substantial financial interests. This is relevant to the admissibility requirements under the Federal Supreme Court Act (BGG) (in particular, the value in dispute) (E. 7.4).

Take‑aways

• Agreed requirements for arbitrators (e.g. residence requirements in the articles of association) do not constitute grounds for review; only justified doubts as to independence or impartiality may form the basis for a review (Art. 396(1)(d) ZPO in conjunction with Art. 367(1)(c) ZPO; E. 4.3, 5.1)
• The absence of an agreed requirement cannot be invoked as a ‘new fact’ under Art. 396(1)(a) of the Swiss Code of Civil Procedure (ZPO); in any event, its relevance and the fact that it was not apparent would have to be substantiated (E. 5.2).
• Disputes concerning listing under sports association law are, in accordance with established practice, matters of property law (para. 7.4).

Further links

• Previous Federal Supreme Court judgment 4A_628/2023 of 14 February 2024
• The TAS judgment at issue dated 17 and 24 May 2023 (CAS 2022/A/9330)

24.3.26

1C_225/2025: Planning Zone (official publication)

by Jamie Lee Mancini on 24 March 2026

In the decision due for publication 1C_225/2025 dated 9 February 2026, the Federal Supreme Court addresses the question of whether land can be designated for different above-ground and underground uses, and what consequences this has for its classification as a building or non-building zone.

Facts of the case

In November 2010, the voters of the town of Maienfeld approved a comprehensive revision of the local planning scheme, which entailed, in particular, a revised Building Act and the revision of all land-use plans. The General Development Plan (approved by the cantonal government in July 2011) subsequently provided for a public underground car park at Schlossbungert, with the access road to be located in the Kaufhausplatz area. Accordingly, the town of Maienfeld intended to carry out a neighbourhood plan for Kaufhausplatz and Schlossbungert, which was to regulate the design and development of the area. The plots affected by the neighbourhood plan perimeter were located in the green belt, the town centre and old town zones, and the rest of the municipal area.

Numerous objections were lodged against the initiation of the neighbourhood planning process, including those by the appellants. The Maienfeld Town Council rejected the objections; the Administrative Court of the Canton of Graubünden likewise dismissed the appeals lodged against this decision. Before the Federal Supreme Court, the appellants essentially argued that the neighbourhood planning procedure should not be initiated. Furthermore, they contended that an expert opinion should be sought from the Federal Commission for the Preservation of Historical Monuments (EKD) and/or the Federal Commission for the Protection of Nature and Cultural Heritage (ENHK).

Considerations

The appellants’ primary objection was to the classification of Maienfeld’s green belt as a restricted building zone. They argued that by treating the green belt as a building zone, the lower court was undermining the framework established in Articles 15–17 of the Spatial Planning Act (RPG) and violating the principle of separation, which is fundamental to spatial planning law.

The Federal Supreme Court took a different view:

It first addressed the legal basis of planning law and stated that land-use plans regulate the permissible use of land (Article 14(1) of the Spatial Planning Act). These, the Federal Supreme Court continued, distinguish between building zones, agricultural zones and protection zones. The cantons may subdivide, vary, combine and supplement these basic types, provided that the principle of separation (the distinction between building and non-building zones) is observed (E. 4.1).

The green zone at issue in the present case (Art. 33) is classified as a protection zone under the municipal system (E. 4.3). The decisive factor is therefore whether land can be allocated to different above-ground and underground uses, and what consequences this would have for its classification as a building or non-building zone (E. 5).

The Federal Supreme Court noted that the subdivision and combination of different land types permitted under federal law – in particular of building and protection zones – does not always make it straightforward to definitively classify land as belonging to a building or non-building zone. In practice, for example, reference is made to special, restricted or limited building zones (or ‘zones à constructibilité restreinte’) as well as to special (building) zones (para. 5.1, citing BGE 145 II 83 E. 4.2; 143 II 588 E. 2.5; 118 Ib 503 E. 5b; 118 Ia 446 E. 2c).

The Federal Supreme Court agreed with the lower court that spatial planning law does not stop at the earth’s surface, but also applies to the subsoil. The local authority must therefore also draw up and coordinate the necessary spatial plans for the subsoil. The subsoil is, in principle, covered by land-use planning, even if building regulations do not expressly mention underground uses. In this sense, the purpose of a land-use zone also relates to underground construction activity. However, the purpose of a zone may also be defined in such a way that it specifically relates to the subsoil or provides for a different use in the subsoil than on the earth’s surface (E. 5.2).

In the present case, the green zone of the town of Maienfeld serves a different purpose above ground than it does underground: Whilst the ground surface is to be kept largely free of buildings and structures, or only small structures directly related to land use may be erected, underground car parks are explicitly permitted (E. 5.3). Thus, in accordance with the basic principles of planning law, construction activity is explicitly permitted in the disputed area of the Maienfeld green zone (E. 5.4).

Outcome

The appeal was dismissed.

24.3.26

5A_114/2025: On lis pendens in international relations in the context of optional conciliation proceedings (“forum running”)

by Michael Pötzi on 24 March 2026

In the judgment 5A_114/2025 of 13 January 2026, which is due to be published, the Federal Supreme Court considered the issue of lis pendens. The dispute centred on whether the filing of an application for optional conciliation pursuant to Article 199(2) of the Swiss Code of Civil Procedure (ZPO) gives rise to international lis pendens within the meaning of Article 9(2) of the Swiss Private International Law Act (IPRG), and what consequences a possible lack of leave to sue would have on lis pendens.

Facts of the case

F.A., a French national, died in France in 2019, leaving behind his wife A.A., his daughter B.A. and three sons from his first marriage, C.A., E.A. and D.A., all of whom are resident abroad.

On 3 June 2020, A.A. filed an application for conciliation with the conciliation authority of the municipality of X. (Switzerland) against all the heirs, seeking the settlement of matrimonial property matters, a determination of the value of the estate, the division of the estate and the reduction of gifts. All the respondents were summoned to the conciliation hearing on 21 September 2020. D.A., who lives in the USA, was not duly served with the application for conciliation and the summons; on 3 August 2020, he contested the jurisdiction of the Swiss court seised of the matter and announced that proceedings would be brought in France, with C.A. also contesting the jurisdiction. Only A.A. appeared at the conciliation hearing; the conciliation authority issued a certificate of authorisation to proceed on 21 September 2020.

On 30 September 2020, C.A. filed an action for the division of the estate against all the heirs in Paris. A.A. and B.A. raised defences of lack of jurisdiction and lis pendens in France in favour of Switzerland. The French courts dismissed the plea of lack of jurisdiction but stayed proceedings on the issue of lis pendens until the question of Swiss jurisdiction had been clarified.

In Switzerland, A.A. filed her substantive action for the division of the estate with the District Court of Hérens-Conthey on 22 October 2020. Following a ruling – initially upheld by the Cantonal Court – that the Swiss courts had jurisdiction, C.A. and D.A. in particular subsequently contested the admissibility of the claim on the grounds of an alleged lack of valid authorisation to sue, as well as international lis pendens, since the French claim had been brought earlier. The District Court dismissed the plea of inadmissibility regarding authorisation to sue, but upheld the plea of lis pendens and stayed the proceedings pursuant to Article 9(1) of the Swiss Private International Law Act (IPRG). The Cantonal Court of first instance confirmed this decision in principle, but amended the allocation of costs. A.A. lodged an appeal against this cantonal decision with the Federal Supreme Court.

Summary of the key considerations

Firstly, the Federal Supreme Court confirmed that even an optional application for conciliation is sufficient to give rise to lis pendensArticle 9(2) of the Private International Law Act (IPRG) is to be interpreted autonomously; the decisive factor is the first ‘necessary’ procedural step taken to initiate the proceedings (E. 5.2) . This term is to be understood not in the sense of ‘mandatory’, but in a functional sense. In accordance with Article 62(1) of the Swiss Code of Civil Procedure (ZPO) and current legal scholarship, the filing of an optional application for conciliation is therefore sufficient to establish lis pendens in international proceedings (E. 5.3.3). This takes account of the legislature’s objective of ensuring that lis pendens arises as early as possible.

Furthermore, the Federal Supreme Court examined the implications of an allegedly flawed summons of a necessary co-party im in the conciliation proceedings. It held that, in the case of optional conciliation (Art. 199(2) of the Civil Procedure Code), authorisation to sue does not constitute a procedural prerequisite (E. 6.3.2.1). Unlike in the case of mandatory conciliation, a defect in the authorisation to sue therefore does not render the action inadmissible (E. 6.3.2.3) . Consequently, the formal validity of the authorisation to sue is also not decisive for the establishment or maintenance of lis pendens. The only relevant factors are the absence of obvious defects in the application for conciliation, the date of its submission, and the timely filing of the claim within three months (Art. 209(3) ZPO).

As the application for conciliation was filed on 3 June 2020 and the action was brought in good time, lis pendens existed in Switzerland prior to the commencement of the French proceedings (E. 6.3.2.4). According to the Federal Supreme Court, the conditions for a stay of proceedings under Article 9(1) of the Swiss Private International Law Act (IPRG) were not met.

Conclusio

The Federal Supreme Court upheld the appeal, ruled that there was no lis pendens in favour of the French proceedings, and found that lis pendens in Switzerland had already been effectively established on 3 June 2020.

19.3.26

5A_844/2024: Behauptungs- und Beweislast im Zusammenhang mit dem ehelichen Lebensstandard (amtl. Publ.)

by Jean-Michel Ludin on 19 March 2026

In the judgement 5A_844/2024 of 16 February 2026, which is due to be officially published , which is due to be officially published, the Federal Supreme Court holds that, under the two-stage concrete method, it is incumbent upon the person liable for maintenance to allege and prove the marital standard of living.

Summary

In both spousal and post-marital maintenance cases, the person entitled to maintenance is, in principle, entitled to the financial resources that enable them to maintain the standard of living enjoyed during the final period of cohabitation. Therefore, insofar as financial circumstances permit, the maintenance must cover not only the maintenance recipient’s current family law subsistence minimum, but also the surplus share last achieved during the period of cohabitation, less any savings rate. The marital surplus share calculated in this way serves as both the starting point and the upper limit for the appropriate maintenance.

In the judgment under discussion here, the Federal Supreme Court was required to determine who bears the burden of asserting and proving the marital surplus.

The Federal Supreme Court first notes that, in the case of post-marital maintenance, the court is not obliged to clarify the facts regarding the last joint standard of living on its own initiative. This applies in principle even where, as in this case, the court is simultaneously required to determine child maintenance payments. Admittedly, when determining post-marital maintenance, the court does take into account findings obtained in connection with the simultaneous determination of child maintenance – due to the interdependencies between the categories of maintenance – based on the unrestricted duty of investigation applicable in that context. However, this has no bearing on the present case: Child maintenance is not, as a matter of principle, limited to the parents’ last joint standard of living.  If the financial circumstances of the person liable for maintenance improve after the separation, the child may — provided that other circumstances remain unchanged — be entitled to a share of that person’s (improved) financial capacity. Nor had it been argued, nor was it apparent, that such a limitation on child maintenance had been at issue before the lower court. Consequently, the principle of full disclosure applies (E. 7.1).

The Federal Supreme Court further states that the burden of assertion follows the objective burden of proof under Article 8 of the Swiss Civil Code. The dispute concerns the initial determination of maintenance. The assertion and proof of the elements giving rise to the claim therefore rest, in principle, with the person claiming maintenance (E. 7.2.1). (E. 7.2.1).

It should be noted, however, that the two-stage, concrete method rightly applied here is based on the assumption that, during the marriage, all income was, in principle, used to cover living expenses. Separation is usually associated with additional costs. It should therefore be presumed that the maintenance claim, determined on the basis of current needs and current income, does not exceed the standard of living enjoyed during the marriage. Reviewing this standard is justified only in exceptional cases. Such a case arises in particular where a savings rate was established during the marriage or where the family currently has greater financial resources at its disposal than during the period of marital cohabitation. It follows from the concept underlying the two-stage concrete method that the maintenance entitlement must be determined on the basis of the parties’ current income and current needs. The burden of assertion and proof that the maintenance payments determined in this way would lead to a higher standard of living than during the marriage rests with the person liable for maintenance. They must therefore allege and prove a savings rate or a lower surplus during the period of cohabitation. In the present case, the appellant, who is liable for maintenance, failed to do so (E. 7.2.2 et seq.).

Commentary

The question of who bears the burden of assertion and proof regarding the savings rate has long been settled. It is now also officially established who bears these burdens in relation to the marital surplus share. Once again, it is the person liable for maintenance who bears a considerable burden of proof under the two-stage concrete method.

The judgement has significant practical implications for lawyers practising in family law. In disputes over spousal or post-marital maintenance, the party liable for maintenance will in future have to claim and prove the marital surplus share in order to prevent the family surplus accrued after the separation from being distributed indefinitely to the person claiming maintenance. This is particularly significant where one spouse takes up or expands a new gainful employment after the separation, leading to a substantial increase in surplus compared with the period of cohabitation.

With regard to spousal maintenance, it should be noted that the limited principle of investigation applies in such cases, meaning that the court has the option of determining the spousal surplus share on its own initiative – provided the relevant documentation is available – even without a corresponding claim by the parties (see Ludin, ‘Processual Principles in Maintenance Law’, FamPra.ch 3/2025, p. 581 ff.). However, a cautious party will not rely on this.

The judgement also serves as a prime example of the fact that the burden of assertion and proof in maintenance law must not be taken lightly, even when child maintenance is to be determined at the same time. If a particular fact is relevant solely to post-marital maintenance, the principle of adversarial proceedings applies. This applies not only to facts relevant to the spousal surplus share, but also to facts relating to the nature of the marriage and pension maintenance (see Ludin, ‘Processual Principles in Maintenance Law’, FamPra.ch 3/2025, p. 581 ff.).

From a legal theory perspective, the question to be answered by the Federal Supreme Court regarding the burden of assertion and proof for the marital surplus was a difficult one. The difficulty lies in the fact that the final joint marital standard forms not only the upper limit but also the starting point for the maintenance calculation. If there was no surplus during the marriage, this cannot be claimed post-marriage either, and the claimant is entitled only to coverage of the minimum subsistence level. Against this background, there were voices in legal scholarship that sought to place the burden of proof regarding the existence and amount of the marital surplus on the party claiming maintenance (see Jungo, ‘Proof of the post-marital maintenance claim’, FamPra.ch 4/2020, p. 940 ff.). This solution, too, would have been perfectly justifiable. However, it has already become apparent from the unpublished judgements cited by the Federal Supreme Court in its new landmark ruling that the Federal Supreme Court takes a different view.