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BGE 53 II 440 ΓÇó Effect of reconciliation on divorce grounds
BGE 53 II 440Amtliche Sammlung des Bundesgerichts (BGE) / Band II08.12.1907
In a divorce dispute, the Federal Court held that a written reconciliation declaration was voluntary where the spouses later resumed sexual relations. The reconciliation excluded reliance on adultery and mistreatment as divorce grounds. The Court nevertheless stated that reconciliation does not, as a rule, bar a divorce claim based on deep marital breakdown; it is, however, strong evidence that the breakdown is not severe enough to make continuation of the marriage intolerable. The excerpt does not disclose the formal dispositive part of the judgment.
Art. 137 Abs. 3, Art. 138 Abs. 3 and Art. 142 ZGB; reconciliation during divorce proceedings: a written reconciliation declaration is presumed voluntary when the spouses thereafter resume marital sexual relations. Such reconciliation extinguishes reliance on adultery and mistreatment as divorce grounds, but does not per se bar a claim based on continuing marital breakdown. Forgiveness does not retroactively erase fault as a cause of the breakdown; however, reconciliation is ordinarily a decisive indication that the breakdown is not so deep that continuation of the marital union can no longer be required (consid. 1).