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BGE 23 I 150 ΓÇó Appeal inadmissible against jurisdiction ruling in divorce case
BGE 23 I 150Amtliche Sammlung des Bundesgerichts (BGE) / Band I25.03.1880Inadmissible
The husband sought divorce, fault-based compensation, and custody of two children. The Bern vice-president, acting as conciliator, held ex officio that the court lacked jurisdiction; the cantonal appeal failed. The Federal Supreme Court held that an appeal under Art. 58 para. 1 O.G. is admissible only against final merits judgments, not against interlocutory rulings on competence. It therefore did not enter on the appeal.
Art. 58 al. 1 O.G.; admissibility of federal appeal against a cantonal ruling on jurisdiction in divorce proceedings. Only decisions of the last cantonal instance that constitute a final judgment on the merits, i.e. that definitively dispose of the substantive claim, are appealable. Procedural preliminary rulings, in particular decisions denying jurisdiction, are excluded from appeal even if they terminate the proceedings in the instance concerned. The fact that competence is examined ex officio does not alter the nature of the ruling as a non-final procedural decision (consid. 1).