In a total of five new decisions (5A_907/2018, 5A_311/2019, 5A_891/2018, 5A_104/2018, 5A_800/2019), the Federal Supreme Court has clarified important questions regarding maintenance law and partially changed its previous practice. In the future, only one specific method is to be used to calculate all types of maintenance for children and spouses. Besides, the Federal Supreme Court has changed its practice concerning the question of the reasonableness of gainful employment after a separation or divorce and about the definition of a life-shaping marriage.
Calculation of maintenance
According to previous legal practice, it was left to the cantonal courts to decide which calculation method they used to calculate maintenance. As a result, the courts used various methods, some of which got mixed. This led to an inconsistent practice, which could even vary within a canton. The resulting legal uncertainty made it difficult for lawyers to give advice and could lead to considerable disadvantages when changing canton.
With the new case law, the Federal Supreme Court has now put an end to the pluralism of methods. Consequently, in the future, only the two-step method will be used to calculate maintenance. With this method, the spouses’ total income is first determined, and then the needs of the involved parties are determined. If the available means exceed the subsistence minimum, the surplus is distributed on a discretionary basis in view of the specific situation. If the available capital is insufficient, cash maintenance for the minor children comes first, care maintenance second, any matrimonial or post-marital maintenance claim third, and finally maintenance for adult children.
Reasonableness of post-marital employment
Furthermore, the Federal Supreme Court has abandoned the “45-rule” that applied until now. According to the “45 rule”, a spouse can no longer be expected to take up gainful employment if he or she was not employed during the marriage and had already reached the age of 45 at the time the joint household was dissolved or at the time of the divorce. Now it is to be assumed that the pursuit of gainful employment can be expected if there is a possibility of gainful employment and there are no impeding obstacles. The actual circumstances of the individual case are decisive, in particular:
- age;
- health;
- previous activities;
- personal flexibility;
- the situation in the labor market.
Life-shaping marriage
Finally, the Federal Supreme Court has specified and further developed the concept of a life-shaping marriage. The definition of a life-shaping marriage is crucial, as in the case of a divorce, it constitutes a right to maintain the previous marital standard of living.
Up to now, a life-shaping marriage was assumed if the marriage lasted more than ten years or if a child was born of the marriage. This led to solutions that resulted in either very short maintenance pensions or, in the case of life-shaping marriages, permanent maintenance pensions. With the new practice, maintenance pensions are to be appropriately limited in time according to the individual circumstances. This means that an individual examination is required to determine whether the marriage has had a decisive influence on the lives of the spouses. According to the new case law, a marriage thus appears to be “life-shaping” if one spouse has given up his or her economic independence in favor of taking care of the household and children, or if it is therefore no longer possible for the spouse to continue in his or her former professional position after many years of marriage, while the other spouse was able to concentrate on his or her professional advancement given the marital division of tasks.
