Updated: Aug 16
Sources of family law
The primary sources of German family law are to be found in the Fourth Book of Civil Code and additional legislation, all of which now extends to both West and East Germany. Rules of East German law, relating to pre-unification judgements and other matters, still apply. Child law published in 1995 German family law has been subjected to several comprehensive revisions. The former Marriage Act has been abolished; the provisions concerning the formal requirements for a valid marriage are incorporated in the Civil Code now. In 1998, changes were brought by the Child Law Reform. The rules governing parental custody and contact have been amended. Former disparities between ‘legitimate’ and ‘illegitimate’ children have been eliminated.
Relevant legislation outside the Civil Code includes the Child and Youth Services Act of 1990. A wide range of forms of assistance for families and children are provided in this Act. Rules of procedure in maintenance, divorce and related matters are found in the Code of Civil Procedure, whereas procedural aspects relating to parent-child relationships are governed by the Act on Matters of Non-Contentious Jurisdiction. All codified and other legislations must be in conformity with the principles laid down by the Federal Constitution (Basic Law) of 1949 which gives protection not only to such basic values as human dignity, liberty, and equality, but also to the social institutions of marriage and family.
Under the Judicature Act, as amended in 1977, most family related matters, as maintenance, divorce and related matters, including custody, are subject to the jurisdiction of the family courts, which are departments of the locals courts (‘Amtsgerichte’). Children’s issues such as adoption and the appointment and control of guardians are vested within the jurisdiction of the guardianship courts (‘Vormundschaftsgerichte’) are departments of the local courts. A curator or guardian can be appointed by the family court, in case the family court makes an order to restrict or withdraw parental custody. Appeals are taken to the courts of appeals (‘Oberlandesgerichte’) and the regional courts (‘Landgerichte’) deal with the appeals in some ancillary procedural matters. Points of law may be examined, upon petition for review, by the Federal Supreme Court (‘Bundesgerichtshof’) at Karlsruhe. Constitutional issues, which arise frequently in family law, may be submitted to the Federal Constitution Court (‘Bundesverfassungsgericht’), also at Karlsruhe, whose decisions in recent decades have done much to reform and shape family law rules.
German judges are selected from successful candidates in the second state examinations. Women’s proportion is increasing rapidly in judiciary. Lawyers other than career judges may be appointed members of the Federal Constitution Court.
Adjudication of disputes
Divorce proceedings are regarded as adversarial proceedings, but many of the rules characteristics of adversarial proceedings, such as those on default, do not apply. Provisions of the Act on Non-Contentious Matters will be applied in child related and other proceedings specified in the procedural rules.
There is no difference between different groups of lawyers such as barristers and solicitors, or avocats and avoues under German law. In a family case, any practicing lawyer admitted to the regional court may appear. A specified title (‘Fachanwalt fuer Familienrecht’) is acquired by lawyers who are specialised in family law. Representation by a lawyer is mandatory in divorce and related matters before the family courts, or the jurisdiction above the local courts.
Parties to proceedings may, upon application, receive legal aid (‘Prozesskostenhilfe’) provided their income is not above a certain stipulated level, and provided that the suit has a reasonable chance of success, and that the prosecution of the claim is not frivolous. Whenever it is mandatory, or necessary under the circumstances, legal aid includes representation by the attorney.
On the basis of reciprocity, legal aid is available to the non-residents.
Legal aid is granted in each case by the court having jurisdiction; applications will have to be addressed to the court. The other party will be informed and given an opportunity to react; the ensuing controversy will often show how the court views the matter as a whole. On an international level, Germany is a party to the Hague Convention on Civil Procedure of 1954. Germany is not a party to the Agreement on the Transmission of Application for Legal Aid 1977.
Under German law, domicile (‘Wohnsitz’) is understood to mean ‘permanent establishment at a given place’. A term resorted to in treaties, this amounts to a more durable connection than ‘habitual residence’ (‘gewohnlicher Aufenthalt’). On the other hand, the German understanding of domicile does not connect a person with a given jurisdiction; as does the English notion, nor does German law distinguish between the domicile of origin and domicile of choice. A domicile may be had at several places. If a person terminates the personal establishment with an intent to abandon domicile, it will be terminated.
Spouses may have different domiciles. Domicile of a minor cannot be terminated of his own without the consent of the person having statutory authority to act on his or her behalf.
THE CREATION OF A VALID MARRIAGE
In order to contract a valid marriage the parties must have the capacity to marry and comply with specified legal formalities. Failure to satisfy these requirements will result in non existence or voidability of the marriage.
Capacity to marry
In order to contract a valid marriage the parties must:
(i) not be within the prohibited degrees of relationship. A marriage shall not be entered into by persons where one is a descendant of the other, or by persons who are issue of the same parents or one parent. In contrast to former law, marriages between step-parent and stepchild, or between a parent-in-law and a son/daughter-in-law are allowed now.
(ii) be over the age of 16. As a matter of principle, parties to the marriage must be over the age of 18. The family court may, however, permit marriage prior to that age if the applicant is over 16 and the future spouse is over 18. In any case where a party is below the age of 18, consent by the person or persons having parental custody of the minor will be needed. If it is denied without a reasonable ground, the family court may, upon application by the minor, replace parental consent by its own. Failure to obtain parental consent and/or judicial consent will render the marriage voidable.
(iii) not be already married. A party to a marriage must not be already married to another person at the time of the later marriage. The existence of a previous and valid marriage will make the later marriage voidable. Upon application by either party, or by the other party to a previous marriage, or by the competent administrative authority, the family court will declare the later marriage void.
If a spouse has disappeared, and has been declared dead through a judicial order, the resulting presumption of death will enable the other spouse to marry again. If the spouse declared dead is still alive, the other spouse’s second marriage will nevertheless be valid unless both parties to the later marriage knew at the time of their marriage that the spouse declared dead was alive at the time of declaration. The previous marriage will be dissolved by the later marriage, not by the declaration of death. If the spouse declared dead is still alive, the spouse who sought the declaration may demand dissolution of the later marriage, unless he or she knew at the time of this marriage that the former spouse had survived the declaration; the time limit for such an application is one year.
(iv) be respectively male and female. While the law does not say so in clear terms, it has always been accepted that marriages must be heterosexual, and that the constitutional protection of marriage applies only to such marriages. Specific legislation permits transsexual persons to change their sex. A person, who underwent the procedure of change of sex, consequently can marry a person of his/her former sex.
Under the influence of Nordic initiatives and legislation, an Act providing a new institution for homosexual relationships was drafted and entered into force on 1 August 2001. Under the new law, partners of the same sex may be entered into a registered partnership. The registration has the same legal effects as marriage, such as the duty to support each other. The law also provides a procedure for the formal termination of a partnership, as an equivalent to divorce. However, there are differences between a marriage and a registered partnership, such as the provisions to pension splitting will not apply in the case of formal termination of such a partnership.
German law works according to the Roman concept of marriage as an agreement between the spouses (‘consensus facit nuptias’). The formal requirement established by the Council of Trent, that marriage must be contracted before an authorised clergyman (‘coram parrocho proprio’), was adopted by the German Personal Status Act of 1875, subject to the modification that marriages should henceforth be solemnised only by a civil registrar (‘Standesbeamter’). There shall be no marriage at all, not even a void marriage, in the absence of such solemnisation.
Religious marriage in conformity with the rules of the parties’ religion is permitted, but has no legal effect under German law, as German law gives the civil registrar exclusive authority to solemnise a marriage. There is, however, an exception to this principle under private international law. The marriage may be solemnised by a person duly authorised by the national government of either of the two spouses, if neither of the parties is a German national, provided that this person has been authorised by the Minister/Senator of the Interior of the German State (Land) where the ceremony is to take place. As a result, if both parties are non-German nationals, or one of them is a non-German national and the other a stateless person, the marriage may be solemnised by a Catholic, Protestant or Orthodox clergyman, by a rabbi or imam, etc, subject to the two authorisations indicated.
Personal presence of the parties is required in a marriage ceremony; it cannot be entered into by proxy. Declaration of intention of marriage must be made by each of the prospective spouses, and then the registrar will declare the marriage valid and enter it in the register.
Recognition of foreign marriages
As stated under German conflict rules, a marriage contracted in a foreign country will be recognised as valid if it satisfies the formal requirements of local law. Thus, a German national may validly marry abroad before a clergyman authorised to solemnise marriages in that country, even though such a marriage would be non-existent if contracted in Germany.
THE LEGAL CONSEQUENCES OF MARRIAGE
Marriage creates a status from which certain rights and duties flow.
Marriage is no longer a ground for loss or acquisition of German nationality [Article 16(1), Grundgesetz (Basic Law)]. Naturalisation may be facilitated, if a person who is not a German national marries a German national. Such person should be awarded citizenship provided he or she satisfies certain standard conditions (relating, for example, to matters such as accommodation and capacity to support himself or herself and dependants, if any), loses or gives up any previous nationality and can be expected to adjust to the German way of life, provided however that such naturalisation does not run counter to essential interests of the Federal Republic, especially to its external or internal security, and to its international relations.
Property rights on marriage
The Civil Code provides for several types of matrimonial property regime, one of which is statutory and referred to as gain-sharing community (‘Zugewinngemeinschaft’), whereas each of the others must be established by agreement in the presence of a notary.
Under the statutory regime, each spouse’s property is and remains separate throughout the marriage, subject to:
(i) certain restrictions imposed upon each spouse’s right to dispose of his or her property as a whole, and of household goods belonging to him or herself;
(ii) in the case of divorce, a split of the net increase of property obtained by either spouse during marriage, to the effect that the spouse whose property has increased to a lesser extent than the other’s during marriage is entitled to gain one half of the difference;
(iii) a very complex set of rules permitting, in case of divorce, the split of pensions and insurance, to the benefit of the spouse whose rights and expectancies are worth less than the other’s (‘Versorgungsausgleich’);
(iv) special rules permitting, in the case of divorce, allocation of the matrimonial home and household to the spouse who needs them most;
(v) in the case of the death of either spouse, if the spouse dies intestate, allocation of one additional quarter of the estate to the survivor, over and above what the survivor would receive under the law of succession; to the effect that the survivor will receive a total of one-half if the other statutory heirs are descendants, and three quarters if the other statutory heirs are parents or their descendants.
Mutual duty to support
It is a statutory duty of each spouse to support the family by work and with his or her property as stated under the Civil Code. By doing the household work, spouse will perform his or her duty to support by work, if housekeeping is entrusted to him or her.
The support given must be adequate, which means, taking into account the conditions in which the spouses are living, everything required defraying the expenses of the household and to satisfy the needs of the spouses and the children entitled to support.
Jurisdiction in relation to support issues is vested in the family court.
Children and parental responsibility
Until the children reach the age of majority at 18, married parents have joint parental responsibility of their children. Regardless of whether a parent has custody of a child, the parent owes a duty of support to his or her children. As a matter of principle, this duty is lifelong, as is the statutory duty of a child to support his or her parents. However, the duty of the parents to share their income and property with their children only applies to unmarried children. The same principle applies to unmarried children up to the age of 21 living in their parents’ household for the duration of their school education.
Several revisions have been subjected on the law concerning the family name. Until recently German law clung to the principle that husband and wife must have the same family name. Under the BGB of 1900, it was a foregone conclusion that this name should be the husband’s name. The principle was slightly modified by the law reform of 1957/58 under which married women were permitted to add their maiden names to the family name. In the former German Democratic Republic the Family Code of 1965 permitted couples to choose either the husband’s or the wife’s name as the family name, but even here the principle of the family name was retained.
As late as 1976, the Federal Republic introduced a reform law which, while still providing for a uniform name, permitted the spouses to choose either of the two pre-matrimonial names, and further, permitted the spouse whose pre-matrimonial name did not become the family name, to attach it in front of the family name, thus reversing the previous order. The future spouses are asked by the registrar which family name they intended to use as their joint family name. The husband’s family name is registered as the joint family name if the spouses are failed to give them a family name of their choice. This, however, was declared unconstitutional by the Federal Constitution in 1991. As a result, and in conformity with the directives given by the court, the provision was re-enacted.
Now, the law provides that spouses should determine a family name, and that they are free to choose either the husband’s or the wife’s name, the choice being started at the marriage ceremony or later.
INTERFERENCE WITH MARRIAGE BY THIRD PARTIES
During marriage one spouse may associate with a third party in a way which is resented by the other spouse. When the other spouse does not want to seek a divorce in such circumstances, he or she may choose to proceed against the third party, and defend the marriage against intrusion.
There is a possibility to seek injunction by the aggrieved spouse. When an absolute right is threatened such remedy is granted. Under the Code, such an absolute right may be found in life, bodily integrity, health, liberty, or property. More absolute rights, such as privacy, have been developed by case law. The courts rejected the proposition that marriage should be regarded as an absolute right. However, in two different instances the courts have developed ways and means to protect marriage indirectly.
(a) First, it has been held that where spouses live together in a house, a flat or a rented room, they are joint owners, provided there is ownership, or, at least, joint possessors. In such a case joint ownership or joint possession entitles each of the spouses to permit or prohibit entry into the matrimonial home. Thus, if one spouse permits a third party to come in, and the other party prohibits it, the other spouse will prevail. This rule will apply equally where the other spouse had no opportunity to express such a refusal, but where circumstances show that such a denial is to be expected. If such entry into the home threatens to continue, the aggrieved spouse may seek an injunction on the ground that his right of undisturbed co-possession is infringed. While mere possession is not an absolute right, it is assumed for this purpose that lawful ownership or of any contract, must be treated like an absolute right.
(b) Further, the family name attaching to both spouses by virtue of the marriage is also regarded as an absolute right. Clearly, each individual may prohibit another from usurping his or her family name. This right extends to a spouse who adopted the other spouse’s name through marriage.
PROPERTY DURING MARRIAGE
In order to satisfy the constitutional requirement of equality, and give each spouse an adequate share in his or her spouse’s property, Federal Germany enacted a sweeping reform of its matrimonial property law in 1957. Previous types of matrimonial regimes, all of which put the husband in charge of property, were replaced by one statutory regime literally called community of gains (‘Zugewinngemeinschaft’), and two contractual types of settlements to be agreed upon before a public notary.
A combination of separate property during marriage and a split of gains upon its termination is provided in the statutory regime. It was borrowed from the Swedish Marriage Act (‘giftermalsbalk’) of 1920. One of the two systems provides for total separation, and the other for total merger, the former being preferred by those who want to avoid the split of gains, the latter based on agricultural custom in various parts of Germany. Individual settlements may still be agreed upon, but in the absence of legislative provisions they must be drafted carefully and at great length.
While the statutory regime is called a community of gains, it really amounts to a separation of property owned by either spouse before marriage, and acquired by either spouse during marriage. Apart from the statutory regime, the Civil Code provides for two other types of matrimonial settlement. One is separation pure and simple, under which each spouse retain property that he had before the marriage, and that which he acquires during the marriage. The other is community embracing most of the property the spouse had before the marriage and that acquired during the marriage.
What makes statutory regime akin to a community property system is two particular elements:
(i) Each spouse is prohibited from disposing of his or her property as a whole (Vermogen im ganzen’), or of household goods owned by him or herself without the prior or subsequent approval of the other spouse; unapproved disposal will give the other spouse a right to recover the property from the third party. Good faith on the part of the third party will be irrelevant, contrary to the general principle of German property law.
(ii) Upon termination of the regime inter vivos, either by divorce or otherwise, each spouse is under a duty to account for the increase in his or her property between the beginning and the end of the regime.
Occupation of the matrimonial home
Either spouse may demand that the other surrender the matrimonial home, where spouses live separately, or one of them wants to separate, or part of it, to his or her exclusive use, to the extent necessary to prevent severe hardship.
Legislation on protection against domestic violence entered into force on 1 January 2002. The new law inter alia permits exclusion of one spouse from the matrimonial home on the basis of that spouse’s violence against the other spouse.
Author: Navin Kumar Jaggi