Marriage Act (Germany)
|Previous title:||Law to standardize the law of marriage and divorce in Austria
and the rest of the country
|Scope:||Federal Republic of Germany|
|Legal matter:||Family law|
|References :||404-1 a. F.|
|Original version from:||July 6, 1938
( RGBl. I p. 807)
|Entry into force on:||predominantly August 1, 1938|
|New announcement from:||January 1, 1964
( Federal Law Gazette III p. 34 )
|Last revision from:||February 20, 1946
( OJ AK pp. 77, 294)
|Entry into force of the
new version on:
|March 1, 1946|
|Last change by:||
Art. 14 § 13 G of December 16, 1997
( Federal Law Gazette I p. 2942, 2965 )
|Effective date of the
|July 1, 1998
(Art. 17 § 1 G of December 16, 1997)
|Expiry:||July 1, 1998
(Art. 14 No. 1 G of May 4, 1998,
Federal Law Gazette I p. 833, 841 )
|Please note the note on the applicable legal version.|
The German marriage law was repealed on July 1, 1998. Its political and legal history is still important.
Subjects of the marriage law were exclusively the law of marriage and divorce as well as other marriage annulment. Like the other provisions of marriage law (e.g. matrimonial property law ) , these had been part of the civil code since it came into force on January 1, 1900.
Prehistory of the law
The first law on abuse in marriage and adoption of November 23, 1933 ( RGBl. I p. 979), passed barely 10 months after the National Socialists came to power, inserted a § 1325a into the BGB. This concerned the nullity of marriage if a so-called fictitious marriage was suspected (the man's surname was kept by the woman without a cohabitation). This law was rather reserved in its language.
With the so-called Nuremberg Laws (more precisely: by the law for the protection of German blood and German honor of September 15, 1935) all marriages between " Jews and citizens of German or related blood" were forbidden, as well as extramarital sexual relations, their definition was later expanded by Globke. The so-called Marriage Health Act ( law for the protection of the hereditary health of the German people of October 18, 1935) required certificates of fitness for marriage for spouses and excluded people with certain diseases from marriage. Both came from the pen of Hans Globke , later Secretary of State under Adenauer, and Wilhelm Stuckart , most recently retirement officer of the Federal Republic according to the classification B3 as Ministerialrat.
National Socialist Marriage Act 1938
At the " Anschluss Österreichs " in 1938, the provisions on marriage were removed from the German Civil Code (BGB) and from the Austrian General Civil Code (ABGB) and replaced by the National Socialist Marriage Act ( law for the unification of the law of marriage and divorce in Austria and in the rest of the Reich territory , dated July 6, 1938. RGBl. I p. 807, No. 106 of July 8, 1938) replaced.
In addition to changes that z. If, for example, the general ban on entering into marriage without parental consent was concerned and limited, a childless marriage became a miscarriage due to this fact alone and could be divorced immediately. A sufficient reason for divorce was the assertion that the wife was unwilling or unable to conceive, even if the marriage had already resulted in children and the infertility only occurred after the pregnancies . In fact, the divorce rate increased as a result. Some reform proposals from the time of the Weimar Republic were also included in the marriage law . For example, a disruption was added to the previous grounds for divorce, the so-called "home separation suit" (§ 55 EheG 1938, later § 48 EheG 1946), which, however, did not remove the precedence of the principle of fault in divorce.
Marriage Act after 1945 in Austria
In Austria, the marriage law of 1938 (with amendments) continues to apply as a federal law, see marriage law (Austria) .
Marriage Act of the Control Council of 1946 in Germany
After the end of the Second World War, the Allied Control Council was faced with the task of eliminating this injustice. He did not choose to restore the old state of the civil code, but on February 20, 1946, with the Control Council Act No. 16 , enacted an independent marriage law ( ABl. AK p. 77, 294; Federal Law Gazette III 404-1), which replaced the 1938 Marriage Act by deleting typical National Socialist ideas. Thus, for example, the provision of the old BGB was not restored, according to which no marriage was allowed without the consent of the parents. The Marriage Act of the Control Council (Marriage Act 1946) applied in all four zones of occupation , including the Soviet one . In addition to eliminating National Socialist injustice, the marriage law also regulated numerous questions that arose as a result of the war.
Repeal in the German Democratic Republic
After the founding of the GDR , the marriage law for its territory was replaced by the regulation on marriage and dissolution of 24 November 1955 ( Journal of Laws I p. 849 f.) And this was integrated into the newly created Family Code (FGB) in 1965 .
Changes in the Federal Republic of Germany
After the founding of the Federal Republic of Germany , the marriage law was changed several times by the federal German legislature . Since neither the Federal Republic nor the Western Allies could formally repeal a Control Council Act on their own, the original version was only declared ineffective in the event of changes, but not repealed; It was only after reunification in 1997 that a norm of the Control Council version of the Act (Section 8) was expressly repealed for the first time. The changes were made e.g. B. by the Equal Rights Act of June 18, 1957 u. a. with § 1629 BGB (legal representation) and § 1631 BGB (right of upbringing ). It was not until the First Law to Reform Marriage and Family Law (1st EheRG) of June 14, 1976 that some of the marriage law provisions ( divorce law , pension adjustment ) were returned to the BGB. This included the nullity of Section 1629, according to which the father was entitled to represent the child and the mother only represented the child if she exercised parental authority alone. Section 1628 of the German Civil Code on the father's right to make decisions has also been abolished. If the parents could not come to an agreement, the father decided and had to take the mother's opinion into consideration. These regulations in § 1628 and § 1629 from the Equal Opportunities Act of 1957 were already void after a judgment of the Federal Constitutional Court of 1959 if they clearly contradicted the principle of equal rights ( BVerfGE 10, 59).
With Appendix I. Chapter III. Subject B Section III. Clause 11 of the Unification Treaty of August 31, 1990, the scope of application in its version according to the law of July 25, 1986, with effect from October 3, 1990, was extended to all of Germany:
Chapter III - Division of the Federal Minister of Justice
Subject B: Civil law
Federal law comes into force in the area named in Article 3 of the contract with the following provisions:
11. Marriage Act in the corrected version published in the Federal Law Gazette Part III, structure number 404-1, last amended by Article 6 § 1 of the law of July 25, 1986 ( Federal Law Gazette I p. 1142 ), with the following provisions:
a) Sections 1 to 21 and Sections 28 to 37 of the Marriage Act do not apply to marriages that were concluded before the entry into force. The validity of such marriages is determined by the previous law:
b) If a marriage is void under the previous law, the consequences of the nullity are determined according to Sections 23 to 26 of the Marriage Act. This does not apply if a marriage has been declared null and void before the entry into force.
c) If a marriage has been declared null and void before the entry into force, the consequences of the nullity are determined by the previous law. The provisions on the maintenance of spouses apply to the claim to maintenance; whose marriage was divorced before the entry into force, accordingly. A maintenance claim does not exist if the entitled person knew that the marriage was null and void at the time of the marriage.
d) If a spouse has been declared dead before the entry into force, the termination of the marriage is determined according to the previous law. If the other spouse entered into a new marriage and if this was divorced before the accession took effect because the spouse declared dead was still alive, the revival of the marriage terminated by the declaration of death is determined according to the previous law. "
Return to the Civil Code
The regulation of the marriage law was only returned to the civil code with the law on the reorganization of marriage law of May 4, 1998 ( Federal Law Gazette I p. 833 ). Article 14 (1) of this law repealed the marriage law with effect from July 1, 1998, thereby ending a 52-year provisional arrangement.
- German marriage law in World War II
- Herbert Linden , authoritative German commentator on the Nazi era
- Law to standardize the law of marriage and divorce in Austria and the rest of the country. 6 July 1938. RGBl. I p. 807. In: ALEX - Historical legal and legal texts online .
- Texts of historical marriage law (BGB 1900), marriage law 1938, marriage law 1946, GDR marriage law
- Text of the Marriage Act 1946
- Globkes "Marriage Health Act" , RGBl. 1935, p. 1246
- legal information system of the Republic of Austria as amended in the
- Law of December 16, 1997 ( Federal Law Gazette I, p. 2942 ).
- Law No. 16 of the Control Council in Germany (1946). In: Verfassungen.de. June 7, 2004, accessed August 11, 2017 .
- BGBl. 1990 II p. 889 .