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Even today, around 30–50% of marriages (subject to annual fluctuations) end in divorce. Liechtenstein divorce law regarding spousal maintenance is based on the principle that a married couple should jointly bear the consequences of the division of roles during the marriage. At the same time, post-marital maintenance law follows the principle of self-reliance, aiming whenever possible for a “clean break”. Each spouse’s altered needs after divorce should, if feasible, be covered through their own efforts. Maintenance is only generally owed if a spouse cannot reasonably provide for their entitled support, including an appropriate retirement provision.

Whether post-marital maintenance is payable, and if so, how much and for how long, depends on various criteria that must be assessed in each individual case, including:

• What were the relevant living conditions, and was the marriage life-shaping?

• What is the reasonable self-support for the spouse in need, and is it insufficient compared to the other spouse?

• What are the limits of the paying spouse’s financial capacity?

• Even if self-support is insufficient and the paying spouse has means, is there a reason to deny maintenance due to gross unfairness?

Economic disadvantages caused by divorce are generally only compensable if the marriage was life-shaping. Typical life-shaping marriages include long marriages or those from which children were born who still require care. A non-life-shaping marriage is typically a short (less than 5–10 years), childless marriage.

The reasonable self-support of the spouse claiming maintenance depends on factors such as: division of assets, expected future income, returns from self-used assets, entitlements from private or occupational pension plans, actual and potential earnings, etc. This requires an overall assessment. In practice, actual and potential earnings are especially considered. While a court cannot force a divorced spouse to resume or increase a previously held job, if additional employment is both possible and reasonable, a hypothetical income may be accounted for, reducing the maintenance payable. Considerations include childcare duties, long-term marriage with traditional role division, age, illness, or disability.

Maintenance payments must not endanger the financial security of the paying spouse. The law requires that only an equitable amount be paid, taking into account both spouses’ needs and financial situation (Art. 68 Para. 3 of the Marriage Act). Conversely, the paying spouse must make reasonable efforts to earn an income, otherwise a hypothetical higher income may be assumed when calculating maintenance.

Post-marital maintenance may exceptionally be denied or reduced if it would be obviously unfair, contrary to all notions of justice. The focus is on abuse of rights; fault may, but need not, be present. The law mentions cases such as:

• The entitled spouse grossly neglected their duty to support the family.

• The entitled spouse deliberately caused their own neediness.

• The entitled spouse committed a serious crime against the obligated spouse or a closely related person.

If you have questions regarding post-marital maintenance or divorce matters in general, we are happy to advise and represent you, drawing on our extensive practical experience and expertise.

Ruggell, 17 May 2021

In the context of a disability insurance (IV) procedure, an orthopedic-psychiatric expert report was commissioned from a Swiss assessment center. The specialist involved (orthopedics), who did not have a reputation for high integrity, examined our client.

Two years later, when a reassessment of the disability insurance benefits was due, we requested that a new independent expert report be obtained regarding our client’s capacity to work. The medical service of the IV recommended obtaining a follow-up report from the same specialist, which we were informed of as the legal representatives.

On behalf of our client, we objected to this choice of expert, proposed alternatives, and in case our objections were rejected, requested a written decision.

A lengthy correspondence followed between our office and the IV authority. The IV authority largely insisted on appointing the same expert, but did not issue a formal decision as requested. When our client refused to be examined by this expert, the IV authority terminated the disability pension, citing a breach of the duty to cooperate. The IV legal service did not respond to our objection against this decision.

On behalf of our client, we appealed to the Princely Court, specifically challenging procedural deficiencies. The Court upheld our appeal, holding that it would contravene principles of fair procedure if no interim procedure were provided when the IV and the insured person disagreed on the choice of expert. The Court found that the IV should have issued an interim decision regarding the rejection of the expert, as requested by the insured party or their legal representative at the first possible opportunity.

A further appeal by the IV authority was rejected by the Princely Supreme Court (OGH). Unlike the lower court, the OGH referenced Art. 73 IVV, noting that ordering an expert or appointing a specialist affects essential rights or duties of the insured person, which necessitates a formal decision under Art. 73 IVV, particularly when the insured person does not consent. This decision reflects the evolving jurisprudence emphasizing the importance of the insured person’s participatory rights.

(The OGH decision is published in LES 2020, 115.)

Ruggell, 31 October