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BGE 50 II 4 ΓÇó Divorce only after validity of marriage is proven
BGE 50 II 4Amtliche Sammlung des Bundesgerichts (BGE) / Band II09.09.1918
The Federal Court held that a divorce can only be granted if the existence of a legally valid marriage is first proven. In a divorce case, the court may not decide the disputed validity of the marriage merely because no divorce ground is established; nor may it rely only on the parties' concordant statements. For a Swiss spouse, proof of validity was not established here because no recognition by the competent Swiss authorities and no entry in the home commune registers was shown. Any issue of foreign-law validity had to be raised in a separate action for recognition of the marriage's validity.
Art. 158 No. 1 ZGB; divorce presupposes proof of a valid marriage. The court must examine ex officio whether the marriage sought to be dissolved exists in law and may not evade this preliminary question by referring to the absence of divorce grounds (consid. 1). Where the validity of the marriage is disputed, it cannot be determined incidentally in divorce proceedings but only by a declaratory action for recognition of marital validity. For a Swiss party, the absence of recognition by the competent Swiss administrative authorities and of registration in the home commune precludes treating the marriage as proven in the divorce action; foreign-law validity issues are likewise reserved to the validity action.
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