The term provisio ad litem is a Latin phrase meaning "provision for the lawsuit" or "in view of the lawsuit." Today, this legal concept is used in the context of contentious divorces, where the financially more comfortable spouse may be required to advance the costs of the separation or divorce proceedings, including attorney fees, to the other spouse.
Previously, the notion of provisio ad litem was considered a duty of the husband toward his wife. However, since the revision of the Swiss Civil Code on July 11, 1979, it has become an obligation that can be imposed on either spouse.
This concept is part of the obligation of maintenance (based on Art. 163 CC) and the duty of assistance (based on Art. 159, para. 3 CC).
Family maintenance also includes the "satisfaction of needs beyond the material sphere, notably the defense of rights in court" (5A_85/2017). This ensures the right of access to justice as enshrined in Art. 29a of the Constitution. It is important to note that the provisio ad litem is provided in addition to maintenance contributions, which allow the spouse to maintain their standard of living. For instance, a husband had to pay a provisio ad litem to his wife, who was already receiving financial support from him to maintain her lifestyle (5A_808/2016).
This advance payment for judicial expenses is granted by one party to the other to enable them to conduct the legal proceedings without financial constraints. Granting this advance requires the fulfillment of the following conditions (5A_590/2019):
The spouse receiving the provisio ad litem does not have the necessary means to cover the costs of legal proceedings.
The debtor spouse has sufficient financial resources to cover not only their own legal costs but also those of their spouse, provided that the minimum necessary for their own maintenance and that of their family is protected. The debtor spouse may even be required to draw the provisio ad litem from their own assets.
However, the obligation of maintenance by one spouse, and thus the granting of the provisio ad litem, takes precedence over free legal aid. Thus, in the context of matrimonial proceedings, it is the judicial authority's responsibility to first examine whether a party should be ordered to grant a provisio ad litem to the other and, if so, to forego granting free legal aid provided by the state.
The provisio ad litem is based on substantive law and does not constitute a procedural claim. Therefore, the competent court of first instance under cantonal law is responsible for deciding such a request in the context of protective measures for the marital union or provisional divorce measures (5A_590/2019). The request for a provisio ad litem must not only be made at the first instance but also before the initiation of proceedings or at the latest at the beginning of the proceedings. Thus, the deadline for advancing costs under Art. 98 CPC is suspended until a decision is made on the request for provisio ad litem.
If the financially more comfortable spouse refuses to provide the requested advance, the other spouse can request provisional measures from the judge primarily aiming for the former to be ordered to provide an advance of a certain amount as a provisio ad litem.
The provisio ad litem can be refused in provisional measures and granted only at the end of the divorce proceedings (5P_150/2005).
If you would like more information on this topic, our team of professionals would be delighted to welcome you to our office located at 1 Rue du Valentin, 1004 Lausanne, to advise and assist you with your legal matters.
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