Which parties reject the Triple Talaq bill?

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83 II 491

66. Judgment of the II. Civil Department of December 12, 1957 i.S. H. B. against E. B.

Mesures provisoires dans le proc s en divorce ou en s paration de corps. Art. 145 CC. Comp tence en raison du lieu.
1. Devoir d'examen du juge (consid. 1).
2. Lorsque les parties ont la nationalit suisse, la question de savoir si, lors de l'introduction de son action, la femme avait acquis un domicile propre au lieu du proc s doit tre r solue exclusivement d'apr s le droit suisse, m me quand le domicile de l' poux se trouve l' tranger (consid. 2).
3. Le fait qu'une convention a mis fin au domicile commun ne conf re pas la femme le droit de se cr er un domicile propre. Toutefois si, durant la vie s par e, les causes de danger envisag es par l'art. 170 al. 1 CC se produisent, cette disposition doit tre appliqu e par analogy (consid. 3).
4. Quand y a-t-il cr ation d'un domicile? (consid. 4).

Faits partir de page 492

A.- The parties married on February 3, 1951 are citizens of Hergiswil, Canton Nidwalden. In April 1951 they took up residence in Madrid, where the husband is still an engineer today. He has a boy from his first marriage. The marriage of the parties gave birth to four children.

B.- Soon after the marriage, difficulties arose between the parties, according to the husband's portrayal of the wife's mental illness, and her own portrayal of the husband's fault, who had been working towards a divorce for years. The wife has had psychiatric examinations and treatment several times since 1953. When she was released from the Rosalar sanatorium near Madrid in May 1956, a six-month follow-up treatment with occupational therapy in Switzerland was recommended; Immediate return to family life is not advisable because it is precisely there that "her manifestations of illness appear".

C.- After her stay in Switzerland, Ms. B. returned to Madrid, but marital tensions began again. Therefore, on April 15, 1957, the couple concluded an agreement on separation for one year. Clauses 3 and 5 of the agreement read:
"3o - El esposo y los hijos del matrimonio continuaran en el domicilio conyugal, en Madrid. - La esposa podr elegir cualquier otro lugar de residencia, con excepci n de Madrid.
5o - La esposa tendr derecho a tener consigo los hijos del matrimonio durante un mes, en el pr ximo verano. "
"3. - The husband and the children from the marriage remain at the marital domicile, in Madrid. - The wife can choose any other place of residence, except Madrid.
5. - The wife has the right to have the children of the marriage with her for one month in the coming summer. "
After signing this agreement, Ms. B., with her husband's consent, moved to Barcelona, ​​where she worked as a nanny for around three months in a family with seven children.

D.- On July 15, 1957, she traveled to Madrid to spend the holidays there, in accordance with Section 5 of the separation agreement and driven by homesickness for the children. She found it difficult to gain entry into the marital home. There she met the childcare worker employed by her husband with the three younger children. The husband was on vacation in Switzerland with the oldest daughter Silvia and her stepbrother Bruno. On July 17, 1957, she wrote the following letter to the man at the resort:
"On July 15th I traveled to Madrid on the advice of my parents and the superior of the monastery. First I went to the lawyer to inform him. The homesickness for you and the children was so indescribably great that I stopped You will remember that before I left you told me that if you weren't able to find an apartment for us in the Sierra so that I could come home. You will surely remember that. So when I stood under the door on Monday afternoon full of joyful heartbeat to see you and the children again, they did not want to let me in and tried to slam the door in my face. Then I was Surprised to hear that you are in Switzerland with Bruno and Silveli.
The lawyer and Mr. Sch. have now advised me to travel to Switzerland and meet you. I will take the others, i.e. Barbara, Pedro and Rafael, with me. I will go home to the ..... street. I sincerely hope that you and I will meet then. My parents look forward to their grandchildren, whom they hardly know. I wish you and the children a very nice and happy vacation. Give my best regards to Bruno and Silvia. Kind regards Elisabeth. "
The husband had been notified of the wife's return before receiving this letter. On July 17, 1957, he sent her the following telegram:
"I know that you have broken the contract. Ask yourself to leave the apartment immediately and restore it to what it was before. H. .. B. .."
On the following day, he had his lawyer tell his in-laws, who lived in Solothurn, that after his wife had violated the convention, he no longer had any reason to wait any longer with the divorce. At the same time, the lawyer advised the in-laws to urge Ms. B. to return to Switzerland immediately. His client refuses to continue to pay for his wife's maintenance.

E.- On July 26, 1957, she traveled with the three younger children to her parents' house in Solothurn. The next day she brought an oral complaint for separation of the marriage, and on the 29th gl.M. she submitted a request for precautionary measures for the duration of the process. However, on August 3, 1957, the court governor of Solothurn-Lebern did not respond to this request, on the grounds that he was not locally responsible because the prerequisites for establishing an independent residence of the Missing wife. The wife filed a complaint against this decision not to take action at the higher court of the canton of Solothurn.

F.- On August 1, 1957, the husband, for his part, filed for divorce with the President of the Cantonal Court of Nidwalden as the judge of his home town according to Art. 7 g NAG. On the same day he asked the judge to order precautionary measures. The wife, on the other hand, pointed out that she was taking up residence in Solothurn and that she had filed a lawsuit for separation of marriage there on July 27, 1957. However, on August 16, 1957, without discussing the question of jurisdiction, the President of the Cantonal Court of Nidwalden ordered precautionary measures and assigned the four children from the marriage to the father for the duration of the trial.

G.- The wife challenged this decision, made in the only cantonal instance, by appealing for nullity within the meaning of Art. 68 Para. 1 lit. b OG due to violation of federal norms on local jurisdiction at the Federal Supreme Court (C 282 ). Her complaint under cantonal law against the decision to reject her own application issued in Solothurn was successful, as the Solothurn Higher Court overturned that decision on September 18, 1957 and instructed the court president of Solothurn-Lebern to approve the measures sought by the wife have. This higher-level decision is the subject of the present annulment complaint by the husband, who, in contrast to the wife, considers the Nidwalden decision to be correct and considers the affirmation of the place of jurisdiction in Solothurn to be contrary to federal norms of jurisdiction.

The Federal Supreme Court is considering:

1. Precautionary measures in the divorce or separation process according to Art. 145 ZGB are generally to be taken by the judge with whom the main process is pending. If, however, the local jurisdiction for the main process is disputed or if the files indicate that it is doubtful, the judge has to examine at least in a summary manner whether the place of jurisdiction for the main action is applicable, and in the case of an obvious lack of this status he has to reject the request for the ordering of precautionary measures (BGE 53 I 57, BGE 54 I 114, BGE 64 II 397). In the present case, certain doubts were justified in this regard, but there was no good reason to speak of the obvious, unquestionable absence of the Solothurn place of jurisdiction. In this situation, the judge called there was required to either - if the measures requested by the wife were urgent - to dispose of the request, which would not prejudice the decision of the question of jurisdiction for the main process, or - at Negation of urgency - to clarify the facts essential for the question of jurisdiction in more detail for the time being. This was then done by the higher court in the appeal proceedings initiated against the decision not to apply, with the result that the Solothurn place of jurisdiction now appears to be well founded, especially for the ordering of precautionary measures. In view of the priority of the lawsuit pending in Solothurn, the competing place of jurisdiction of the home country claimed by the husband according to Art. 7 g NAG is no longer applicable, as there is a need for mutual actions and therefore also for precautionary measures During the duration of the proceedings, there is a uniform place of jurisdiction for the factual context (BGE 64 II 182, BGE 80 II 97).

2. Whether the wife had her place of residence and place of jurisdiction in accordance with Art. 144 ZGB in Solothurn when her action for separation was raised on July 27, 1957, is to be decided under Swiss law. Because Art. 144 ZGB as well as Art. 7h NAG, which applies to a foreign spouse, has the place of residence under Swiss law in mind. In the case of foreigners, the additional requirement of a place of residence in Switzerland can be added according to the law of the home country, if the latter has the recognition of the Swiss place of jurisdiction (required under Art. 7 h NAG) of the existence of a place of residence of one or both of them Makes parties in Switzerland dependent on his own definition of residence (cf. STAUFFER, N. 8 on Art. 7 h NAG; the same, Die Schescheid von Ausl ndern in der Schweiz, Zeitschrift des Bernischen Juristenverein 59 p. 2/3) . However, this does not matter in the present case, since the parties are Swiss citizens. The wife could therefore bring an action for separation in Solothurn, provided that she was entitled to live separately under Swiss law (Art. 25, Paragraph 2 in conjunction with Art. 170, Paragraph 1 of the Civil Code) and actually within the meaning of Art. 23 of the Civil Code had taken up residence at the place mentioned (BGE 69 II 275Erw. 2, BGE 77 II 17). This application of the law does not conflict with the fact that the husband's place of residence is abroad (BGE 56 II 338Erw. 3). BECK's differing view on this point (at the end of No. 20 of the preliminary remarks on Art. 59 SchlT) is not to be accepted, especially since the claims of a spouse based on Art. 169 ff public order (see BGE 68 II 13Er. 2).

3. From the separation agreement of April 15, 1957 concluded between the parties, the wife's right to live separately within the meaning of Art. 25 Paragraph 2 ZGB with the right to take up residence independently cannot be derived. On the one hand, this is not the meaning of the agreement itself, which leaves the wife only to choose a (more or less permanent) "lugar de residencia", in contrast to the "domicilio conyugal" that remains in Madrid. Then the agreement was only concluded for a period of one year, for the specific purpose of taking health disorders of the wife into account. Incidentally, according to Swiss law, it is not at all permissible to authorize the wife to live separately and to establish independent residence by means of an agreement, provided that there is a legal reason within the meaning of Art. 170 para. 1 ZGB (BGE 41 I 105 and 302, BGE 47 I 425 center).
It is not mentioned here that the wife's good reputation was endangered by living together in marriage. She also had her copious livelihood as a better off wife while living together. For the duration of the agreed separation, she was then guaranteed an affordable maintenance contribution of 2,000 pesetas per month, which she received according to the documents on hand, most recently on July 3, 1957. Whether the separation was necessary with regard to her health, has not been clarified in the current proceedings; in any case, the separation was intended to be temporary.
However, on July 18, 1957, the husband had his lawyer tell the wife's parents for their attention that he refused to pay for their maintenance in the future after she had not adhered to the separation agreement. From that moment on, the wife's economic livelihood was jeopardized, but not "by living together", which had already ceased in mid-April 1957, but at all. The husband not only refused to allow her to return to and stay in the marital home, but also refused to allow her to live on. In such a case, Art. 170 Paragraph 1 ZGB also applies. He considers the normal case that economic management occurs while living together and requires the wife to live separately so that she can find her own livelihood. The same emergency situation arises, however, if the joint household is canceled by agreement for other reasons, under the obligation of the husband to contribute, and the husband then stops his contributions at a later point in time, so that the wife now has to rely on herself is. In this case, too, the legislative basis of Art. 170 Para. 1 ZGB applies; the wife must now be entitled and freely permitted to live separately in the actual, legal sense, i.e. be able to take up an independent residence. The lower instance rightly declares that the reasons for resolution are listed in Article 170, Paragraph 1 of the Civil Code