Husbands often complain in divorce proceedings that the court sets the maintenance to be paid far too high. However, the case dealt with by the Federal Supreme Court on 18 July 2023 (BGer judgement 5A_72/2022) clearly outweighs these partially justified complaints.

During the marriage, the parties agreed in a pre-nup on the matrimonial property regime of separation of property. The family villa, in which the parties lived with their four children, was the sole property of the wife. During the marriage, there was a classic division of roles, so that the husband invested CHF 500’000 in the family villa during this time. After the first two instances in the divorce proceedings rejected the husband’s application for repayment of the investment, he made a final attempt before the Federal Supreme Court.

The husband did not dispute that he had paid all the mortgage interest on the family villa. According to the Federal Supreme Court, it must therefore be assumed that, due to the division of roles, it was the will of the spouses that the husband should also pay for remodelling and improvement work on the family villa. The investments were categorised as ordinary maintenance and not as an extraordinary contribution, which would have resulted in compensation in the amount of the investment. The man was also criticised for the fact that, as a lawyer, he should have been aware of this consequence and should have concluded an agreement to the contrary. This also applied to the construction of the new swimming pool, which accounted for more than half of the CHF 500’000.

The decision is surprising, at least with regard to the investment in the construction of the new swimming pool. However, the Federal Supreme Court also stated that this was the standard of living that the family could afford due to the husband’s very good income. In addition, the husband could have used the wife’s sole property during the marriage.

In order to prevent this unsatisfactory result for the husband in the event of an agreed separation of property, it is advisable to conclude a written loan agreement at the time of the investment. If this is not done, the invocation of a simple partnership should still lead to the desired result, especially as both parties then provide funds to achieve the common purpose of creating a home for the family. However, the husband did not invoke this option at all, which is why this question did not need to be clarified.