Marital capacity

Eligibility for marriage is the ability of a fiancé to legally marry. It is given when the fiancé before mature is.

Applicability; Examination by the registrar

German courts and authorities - in particular the registry offices - examine the marriage eligibility for every fiancé in accordance with the law of the state to which the fiancé belongs ( Art. 13 para. 1 EGBGB ). The registrar has the duty to check the legal capacity of marriage ex officio before the marriage ( § 13 PStG ). If the fiancé is German , the German regulations apply. If the fiancé is a foreigner , the law of his / her home country must be used as a basis for marriage. In order for the registrar to be able to check whether a foreign fiancé can marry, he or she should, according to Section 1309 (1) of the German Civil Code , produce a certificate of marital status from an internal authority in his home country. If the foreigner lacks the ability to marry under his / her home law, the marriage in Germany can still be concluded if one of the engaged is German or has his habitual residence in Germany, the engaged has taken all reasonable steps to meet the marital qualification requirements and the refusal of the marriage is incompatible with the freedom to marry would. German law thus grants freedom of marriage priority over international consensus of decisions. This may mean that a marriage entered into in this way in Germany is regarded as ineffective in the home country of one of the spouses (“limping marriage”).

The registrar must refrain from participating in the marriage if the marriage could evidently be annulled according to Section 1314 (2) of the German Civil Code (BGB) due to a defect in the German fiancé . In the case of a foreign fiancé, the law on non-marital status is also based on his home law.

If the registrar refuses to undertake the marriage, a court decision is given. The registrar himself can also appeal to the court ( Section 49 PStG). The competent civil registry court is the local court at the seat of the regional court. The local jurisdiction is determined by the seat of the registrar who issued the contested order or submitted the matter to the court for decision. The court can order the registrar to certify the marriage.

German regulations

Eligibility for marriage is the possibility of entering into marriage with one another ( Section 1304 BGB). There must be legal capacity for this. For the special case of marriage of minors see marriageable age . However, according to decisions of many courts, including the Federal Constitutional Court , the assessment of marital legal capacity should be measured under more generous categories than the assessment of legal capacity in general (BVerfGE 31, 58/68 = FamRZ 1971, 414 and ) because of the constitutionally guaranteed marriage law ( Art. 6 Basic Law ) BVerfGE 36, 146/161 = StAZ 1973, 90/93 = FamRZ 1974, 122 and BVerfG FamRZ 2003, 359).

Special case of legal capacity

The legal capacity to act as a will is a sub-case of the legal capacity , according to which it depends on whether the fiancé is able to understand the essence of the marriage and to that extent to make a free will decision without the abilities of the mind must be decisive. Even a considerable intellectual disability does not have to exclude the necessary ability to understand the nature of marriage and the free will to enter into marriage.

The Bavarian Supreme Court stated that the marriage is a legal transaction , the content of which is shaped more than other typical legal transactions by ideas firmly anchored in society. It should therefore be checked in individual cases whether the impairment of intellectual activity also extends to the marriage and whether the fiancé has the necessary insight and is able to make free will decisions, even if this insight is lacking for other legal transactions (BayObLGZ 1996, no . 24 = BtPrax 1997, 111 = FamRZ 1997, 294 = NJWE-FER 1997, 1 = StAZ 1996, 229 = FGPrax 1996, 143). It corresponds consistently held that the legal capacity to a specific, objectively limited circle of affairs may limit (so-called. Partial capacity). This is particularly important when assessing the ability to enter into a marriage because it is not so much the abilities of the intellect that are decisive, but the insight into the nature of marriage and the freedom of will to enter into a marriage.

No reservation of consent for marriage

A reservation of consent on the part of the supervisor can expressly not refer to entering into a marriage (or civil partnership ) ( Section 1903 (2) BGB). Thus, since the childcare law came into force on January 1, 1992, the consent of the legal representative of a person wishing to marry is no longer necessary. In the previous law (before 1992), in the event of incapacitation due to mental weakness, drinking or drug addiction or waste, marriage was only permitted with the consent of the guardian . This was known as limited marriage.

Annulability of the marriage

A marriage concluded in violation of Section 1304 of the German Civil Code (BGB) can be revoked by a decision of the family court. A state of unconsciousness or a temporary disturbance of mental activity that existed during the marriage also justifies the annulment of the marriage ( Section 1314, Paragraphs 1 and 2, No. 1). The possibility of annulment of a marriage differs from the earlier legal consequence of marriage annulment , which occurred up to June 30, 1998 under Section 18 of the Marriage Act in the event of a person entering into legal capacity .

According to Section 1317 of the German Civil Code, the application for annulment of the marriage can be submitted to the family court within one year of the circumstances justifying the annulment becoming known . A marriage annulment may not take place if the spouse after the abolition of incapacity , of unconsciousness or temporary insanity has indicated that he wants to continue the marriage.

Cancellation request by supervisor

The application for a legally incapable spouse can only be made by his or her supervisor as the legal representative ( Section 1316 (2) BGB). This requires a suitable group of duties (e.g. representation before the family court). The wealth management supervisor task group is not sufficient for this.

A legally competent supervisor (also with a stipulated reservation of consent ) can only submit the application himself. In the case of a reservation of consent, the supervisor must agree to the application; the supervisor needs the approval of the supervisory court for this (as well as for the application for divorce) ( § 125 para. 2 FamFG ).

Civil partnership

According to the Civil Partnership Act , direct application of Section 1304 BGB is not provided.

literature

Böhmer: The examination of the general marital capacity with special consideration of the BtG . In: StAZ , 90, 213
Deinert: The supervisor in marriage and civil partnership law . In: BtPrax , 2005, 16
Finger: Incapacitated marriage . In: StAZ , 1996, 225;