Destino económico del predio (4.1 )

78. Do special rules exist according to which the debtor may always retain a certain amount even if this means that he or she will not fully fulfil his maintenance obligations?

If the debtor cannot cover the family minimum subsistence level for all parties entitled to maintenance even despite additional reasonable efforts, then the debtor only has to pay maintenance insofar as he or she

is left with his or her own family minimum subsistence.80 This was already the standard practice of the Swiss Federal Supreme Court under the old divorce law and was confirmed in the divorce reform in that a statutory provision to the contrary was rejected. In such a case it may under certain circumstances occur that the claimant spouse who is basically entitled to receive maintenance will not even be granted the minimum subsistence, because under family law it is not permitted to distribute more money than is actually available. The claimant must obtain a supplement from the social welfare department in order to reach the necessary minimum subsistence amount (or perhaps from relatives on the basis of the obligation to support relatives in accordance with Article 328 Swiss Code of Civil Law).

Under such circumstances it would be appropriate in the divorce decree to determine the amount of the shortfall in respect of a fitting level of maintenance for the claimant spouse with a view to its possible adjustment in accordance with Article 129 § 3 in connection with Article 143 section 3 Swiss Code of Civil Law.

79. To what extent, if at all, is an increase of the debtor’s income a) since the separation, b) since the divorce, taken into account when calculating the maintenance claim?

Any increase in the debtor’s income is to be compared with the circumstances at the time of the divorce - and not with the situation at the time of the de facto or judicial separation.

If the divorce decree stated that it was not possible to order an allowance that covered a fitting level of maintenance, and if the debtor’s economic circumstances have accordingly changed, then the claimant may, within five years of the divorce, request that a maintenance allowance be granted or that the allowance be increased (Article 129 § 2 Swiss Code of Civil Law). In this way justice can be done

80 _{BGE of 12.03.2002 [5C.296/2001] and unpublished E. 3 of BGE 127 III 70 with} further references. In this connection the Swiss Federal Supreme Court assumes – one can admittedly have certain reservations about this – that a dispensation will be granted from normal tax liability: BGE 126 III 353; 127 III 70; 127 III 292; on this matter see H. Hausheer, Th. Geiser and E. Kobel, Das Eherecht des Schweizerischen

Zivilgesetzbuches, 2nd edition, Bern, 2002 (to be published shortly), marginal note 10.90.

in those cases in which the debtor’s financial situation and consequently also his or her income has improved considerably in a relatively short time after the divorce. The justification for such limitation in terms of time is that the economic community is also dissolved upon the divorce so that developments which can no longer be deemed to be linked to the marriage should be disregarded.

Furthermore, the claimant may – if the debtor’s income has increased in an unforeseen manner after the divorce – request a future adjustment to the maintenance in line with the increase in the cost of living, even if an automatic indexation was not previously stipulated (Article 129 § 2 Swiss Code of Civil Law).

The law does not provide any further statutory possibility for increasing the maintenance amount in the event of an increase in the debtor’s income. A (first) marriage should not become a divorced spouse’s life insurance and consequently act as a de facto restriction on the other spouse’s freedom to subsequently remarry under ‘normal conditions’.81 On the other hand, there is no barrier to prevent contractual agreements to the contrary.

80. How far do debts affect the debtor’s liability to pay maintenance?

Only such debts which are recognised in respect of the determination of the family minimum subsistence are to be included in the calculations. See also Question 71. If the debtor has to meet other debt obligations as well as his liability to pay maintenance, it is in the interest of the maintenance creditor to be extremely cautious in recognising such other debt obligations in the calculation of the debtor’s needs.82 Literature deems it necessary to include debts in the calculation of the debtor’s basic needs if the debt was created prior to the dissolution of the joint household for the purpose of the maintenance of both spouses but not, on the other hand, if the debt is merely in the interest of one party, unless both spouses were jointly and severally liable. For example, repayments of capital in the case of mortgage loans should

81 _{On this subject as a whole see also H. Hausheer, Th. Geiser and E. Kobel, Das} Eherecht des Schweizerischen Zivilgesetzbuches, 2nd edition, Bern, 2002 (to be published shortly), marginal note 10.122.

not be included in the calculation of basic needs according to this doctrine because they create assets; a deviation from this principle should only be accepted if financial circumstances permit. If the maintenance debtor has to take out an additional loan to meet a claim by the maintenance debtor based on the division of marital property, then according to the practice of the Swiss Federal Supreme Court the amortization instalment which thus arises may not therefore be included in the calculation of the debtor’s basic needs.83

81. Can the debtor only rely on his or her other legal obligations or can he or she also rely on his or her moral obligations in respect of other persons, e.g. a de facto partner or a stepchild?

Only those legal obligations of the debtor which are recognised as being part of the family minimum subsistence are to be taken into account. Moral obligations or voluntary contributions in favour of other persons based on an ethical obligation are irrelevant.

82. Can the debtor be asked to use his or her capital assets in order to fulfil his or her maintenance obligations?

The spouses’ income and assets are a criterion with respect to the ordering of maintenance contributions (Article 125 § 2 section 5 Swiss Code of Civil Law).

In the legal literature and in practice, the result of the division of matrimonial property is used among other factors to assess the self- sufficiency of each spouse, looking forward to the prospect of corresponding income from assets as well as to the future accretion of assets, in particular in the case of expectations based on inheritance law if it is a matter of additional and not just substitute income.84 Consequently, maintenance is based on income from assets and only by way of exception on the utilisation of the assets themselves.

83 _{BGE 127 III 292 ff.}

84 _{H. Hausheer, Th. Geiser and E. Kobel, Das Eherecht des Schweizerischen} Zivilgesetzbuches, 2nd edition, Bern, 2002 (to be published shortly), marginal note 10.81 ff., with further references.

This means that the debtor only needs to use his or her capital to a limited extent, although the income from assets is to be included in the assessment of his or her ability to pay.

According to practice the substance of the claimant’s assets need not be encroached upon until the current income no longer suffices to cover his or her basic needs on a low level, unless there are substantial assets available.85

83. Can a ‘fictional’ income be taken into account where the debtor is refusing possib le and reasonable gainful employment or where he or she has deliberately given up such employment?

Yes. If one party earns a lower income than can be expected based on his or her situation, then a hypothetical income is to be imputed to such a party. A similar rule applies if it seems reasonable for one party to return to work.86 The same must apply even when the debtor has given up his or her job.87 See the remarks on Question 67 above and with reference to the practice of the Swiss Federal Supreme Court as well as the comments on Question 87.

84. Does the debtor’s social security benefits, which he or she receives or could receive, have to be used for the performance of his or her maintenance obligation? Which kinds of benefits have to be used for this purpose?

Income from social security is in general also to be taken into consideration when assessing the spouses’ ability to pay (see Article 125 § 2 sections 5 and 8 Swiss Code of Civil Law). However, the debtor’s obligation is limited by his or her own family minimum subsistence.

85 _{H. Hausheer and A. Spycher (Publisher), Handbuch des Unterhaltsrechts, Bern, 1997,} marginal note 01.75, 03.109 and 04.65, with references to BGE 110 II 323 f. and 114 II 18.

86 _{BGE 128 III 5 f. E. 4a; among many others see also H. Hausheer, Th. Geiser and E.} Kobel, Das Eherecht des Schweizerischen Zivilgesetzbuches, 2nd edition, Bern, 2002 (to be published shortly), marginal note 10.81h.

87 _{See BGE of 27.03.2002 [5C.326/2001] regarding child maintenance and BGE of 23} March 2001 [5C.64/2001]; see also H. Hausheer, Th. Geiser and E. Kobel, Das

Eherecht des Schweizerischen Zivilgesetzbuches, 2nd edition, Bern, 2002 (to be published shortly), marginal note 10.81 ff. for the reverse view with regard to the claimant and not the debtor.

Within the categories of income from social security it is however necessary to distinguish between substitute income (instead of wages) and additional income (a pension in addition to wages). Only the latter category affects the ability to pay or rather the capacity for self- sufficiency.88

85. In respect of the debtor’s ability to pay, does the income (means) of his or her new spouse, registered partner or de facto partner have to be taken into account?

A new spouse may, on the basis of the marital obligation to provide support in accordance with Article 159 § 3 Swiss Code of Civil Law, be ordered to contribute so that his or her spouse can afford to meet his or her existing obligations in respect of maintenance.89 See also Question 92.

As regards a debtor’s post-marital state of cohabitation, it depends on the actual financial advantages enjoyed by the debtor or rather the possibility of a related improvement in the debtor’s ability to pay.90 Swiss law does not currently recognise the notion of a registered partnership.

V. Details of calculating maintenance: The claimant’s lack of