In October 2023, the ultimate Court issued landmark rulings concerning the cancellation of credit agreements indexed or denominated in Swiss francs (as well as in dollars or euro) by erstwhile spouses. These resolutions are of large importance to those who, after divorce, want to assert their rights towards banks, without having to participate in proceedings with their erstwhile spouse.
Key decisions of the ultimate Court
The rulings of the ultimate Court (III CZP 12/23 of 19 October and III CZP 156/22 of 26 October) removed the doubts that erstwhile spouses had to participate in the cancellation proceedings. The Court of First Instance held that a erstwhile spouse does not necessarily gotta participate in the proceedings if the claimant pursues his claims solely within the scope of his or her rights, specified as reimbursement of overpayments or uncovering that the contract is invalid.
What does this mean in practice? Ex - spouse who, after divorce, have no contact with each another or even stay in conflict, no longer request to act together against the bank. Each of them may act individually, provided that their claims fall within the scope of their rights under the credit agreement settlement.
Why is this ruling groundbreaking?
- Elimination of procedural barriers
Previously, many cases could not have been effectively initiated or suspended due to the fact that the courts required participation on the part of erstwhile spouses. This meant that 1 of the ex - mates could effectively block the proceedings, which frequently led to an impasse. - Protection of consumer rights
The rulings are in line with the case-law of the TEU concerning the protection of consumer rights. In accordance with Directive 93/13/EEC and the guidelines of the TEU, judicial procedures in consumer matters must not impose excessive procedural requirements which impede the enforcement of their rights. - Faster Procedure
By removing the request for participation, erstwhile spouses can now act individually against banks, which greatly simplifies the process and speeds up the settlement of cases.
What changes for ex - spouse?
From the consumer's perspective, this means that the way to cancel the franc credits after divorce is not dependent on the activity or position of the erstwhile spouse. These are the main benefits of the fresh rulings:
- No dependence on ex - spouse: A individual who wishes to exercise his rights does not request to get consent or cooperation from the another party.
- Individual redress: Each of the erstwhile spouses may go to court separately, avoiding conflicts or difficulties in communicating.
- Better protection of rights: The Bank cannot usage the deficiency of participation of erstwhile spouses as an argument to challenge claims.
Practical example
Imagine a couple who took a debt indexed to a Swiss franc in 2008. After the divorce, 1 individual wanted to cancel the contract, but she could not communicate with her ex - spouse. By October 2023, the deficiency of participation was a major procedural obstacle. Now, by virtue of fresh judgments, specified a individual can assert his rights and demand, for example, repayment of overpaid credit instalments.
What's next?
The ultimate Court rulings are a further step towards facilitating consumer enforcement. For many erstwhile spouses who have been in a hard trial so far, the anticipation of fighting banks for their rights has opened up. It is besides a signal to the general courts to usage more consumer-friendly procedural solutions.
If you are in a akin situation, consult your case with an experienced lawyer and learn about your rights.
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