Marriage Law (Germany)

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In Germany, the term marriage law can mean all legal norms that apply specifically to married couples. In a narrower sense, however, this term is only used for those norms that regulate the establishment and termination of the marriage as well as the relationship between the spouses . In the Civil Code (BGB), marriage law is included as part of Book 4 in Sections 1297 to 1588 as a sub-area of family law . Regulations on registered civil partnerships have been made in the Civil Partnership Act .

The family law marriage regulations, as far as German law is relevant, in Germany according to § 1588 BGB (so-called " Kaiserparagraph ") do not affect the canonical regulations on marriage.

Structural principles

Marriage in Germany is characterized by the following features:

  • Marriage is between two people. Up to and including September 30, 2017, spouses had to be of different sexes at the time of the marriage. However, if one partner changed sex, both could remain in the civil status of the marriage.
  • You may not be married to another person or in a civil partnership ( monogamy ).
  • The principle of lifelong marriage applies.
  • There must be no close family relationship between the spouses prior to the marriage ( marriage ban , incest taboo ).
  • There are no rules about the structure of the marital union. For example, long-distance marriages are also valid marriages. A marriage does not establish a mutual claim to sexual community either. Rather, every sexual act in marriage requires the consent of the other spouse, otherwise there is rape or sexual coercion .
  • There is no ban on sexual association with third parties. The adultery was in 1969 removed from the Criminal Code and has since 1977 no civil consequences more. However, it remains an illegal act according to § 826 BGB .

Marriage law is constitutionally based on Art. 6 GG ( protection of marriage and family ).

The rules governing engagement (marriage vows) have become less important. There are still concrete effects in the areas of refusal to testify , the obligation to guarantee and the return of gifts from the engagement period.


See also: marriage

Admissibility of the marriage

The admissibility of marriage (= marital status ) depends for every citizen on the law of the state to which they belong. The ability to marry is lacking if one or both fiancées are prevented from entering into marriage .


If one or both fiancées have an impediment to marriage, a faulty but effective marriage usually arises (suspensive marriage impediment). The legal consequences of a faulty marriage have been greatly redesigned by the Marriage Reform Act of July 1, 1998. Since 1998 a faulty marriage can be annulled by legal action .

The main grounds of inadmissibility that lead to an erroneous marriage, are missing marriageable age , incapacity and the marriage prohibitions . For Germans, marriage is prohibited if the engaged couple are directly related or if they are full or half-born siblings on the sidelines . They are also prevented from marrying if there is a marriage or civil partnership between one of the people who want to get married and a third party. In the past there were further marriage bans in the BGB and in the marriage law .

Other circumstances that lead to a faulty marriage are the marriage of a fiancé who was in a state of temporary clouding of consciousness, in which there was a lack of business will or explanatory consciousness with regard to the marriage , or which was caused by malicious deception or unlawful threats to enter into the Marriage was determined. The justification of a marriage of convenience , for example for the purpose of obtaining a residence permit, is also incorrect.

Only in very exceptional cases does a reason for inadmissibility prevent the marriage as such (separating marriage obstacle). Then, regardless of the will of the fiancé, no marriage came about from the start ( non-marriage ).

An obstacle to marriage can be absolute or dispensable, unilateral or bilateral. An impediment to marriage is dispensable if it can be released from it. Otherwise the impediment to marriage is absolute. Exemption can be granted, for example, from the prohibition of marriage between an adopted child and those to whom a relationship has been established through adoption.

An obstacle to marriage is bilateral if facts about the person of the other party are also decisive for the admissibility of the marriage of the person for whom the obstacle to marriage comes into consideration. Otherwise the obstacle to marriage is one-sided. The prohibition of bigamy is a two-sided marriage ban.


If you want to marry as a foreigner in Germany, you have to meet the requirements for marriage eligibility under the law of your home country. The legal consequences of an impediment to marriage (for example, annulability, contestability, action for annulment, non-marriage, healing of the error), the dispensability and the unilateral or bilateral nature are also based on this legal system.

Because a foreigner is subject to his / her home law with regard to the requirements for marriage, a certificate of marital status is sometimes required for him , which confirms that he meets the provisions of his / her home law.

Form of marriage

In Germany, marriage is concluded in front of the registrar ; this regulation was turned away for the then German Reich (Section 41 Reich Personnel Status Act of February 6, 1875) and for Prussia since 1874.

The engaged couple must be present in front of the registrar at the same time and declare that they want to marry. A non-marriage exists if the marriage is to be concluded in front of a person other than a registrar or a registrar who is not willing to cooperate. The same applies if the engaged couple made a declaration other than that required for the marriage. Representation in marriage is not permitted ( gloved marriage ); the marriage is a highly personal transaction . To prove the marriage, a civil status register (marriage register until 2008) has been kept at the registry office since 1875 , and a family register was also kept from 1958 to 2008 .

During the Second World War , according to German law, there was the possibility of so-called light marriage between fiancés if the man was missing in the field or had died. There was a post-mortem marriage in France as early as the First World War .

According to the German formal requirements, the marriage must also be concluded if one or both of the fiancés are foreigners. In this case, the form of marriage is subject to a different legal system than the assessment of the ability to marry, the matrimonial property law , the general effects of the marriage and the law of divorce (“split marriage statute”). Both fiancee not German nationals but can the marriage be concluded in the form of the law of the country where one of the betrothed belong provided they exercise a duly authorized by that state notary, for example, a consul or a clergyman is closed . A certified copy of the civil register kept by the notary provides full evidence of the marriage. A marriage entered into in this way can be certified in the German civil status register (family register until 2008) upon request.

If Germans marry abroad, it is also formally effective in Germany if it complies with the local law of the state where the marriage was established or with the business law of the marriage. Business law are the legal systems that are decisive for the prerequisite for the marriage. Therefore, from the German point of view, a marriage abroad is legally binding even if it does not meet the German formal requirements or the formal requirements of the place where the marriage union was established, but only corresponds to the home rights of both fiancés. If at least one of the fiancés is German and if the fiancées are fit for marriage from a German point of view, the marriage can be certified by the German registrar in the marriage register (until 2008 in the family register) upon request.

A marriage as a so-called ocean wedding by a captain who does not also have the qualification of a registrar is not permitted on a German ship and is therefore not valid, even if the ship is in international waters, because a captain is always bound by the law of the country under whose flag his ship sails. Couples with German citizenship can only be married by a captain who is not also a registrar on ships that are registered in Malta , the Bahamas or Bermuda , provided the ship is in international waters at the time of the marriage.

Legal Consequences of Marriage

General effect of marriage

Applicable law

After the connection to male law was declared unlawful by the “Spanier decision” of the Federal Constitutional Court , the law applicable to marriage (the so-called “marriage statute”) is determined according to the “ Kegel ladder ” (Art. 14 I EGBGB). Before the IPR came into force on September 1, 1986, marriage law in Germany was determined by the law of the state to which the husband belonged. This rule continues to apply to marriages entered into before September 1, 1986.


According to this provision, the law of the general effect of marriage between the spouses is based on the law of the state to which both spouses belong or last belonged, if one of them still belongs to that state. German law is therefore always applicable to two German spouses through German courts and authorities, even if they live abroad. If two Turks marry in Germany, the provisions of Turkish marriage law apply to the law governing the general effects of the marriage.

Habitual residence

If the spouses have different nationalities, marriage law is based on the law of the state in which they have their common habitual residence (i.e. the center of their lives) or their last common habitual residence if one of the spouses still has his habitual residence there. Because in binational marriages the spouses have by definition different nationalities, the auxiliary connection of common residence is of great importance. Common residence in Germany very often leads to the application of German law.

In order to enable the spouses to preserve their cultural identity , they are given a choice of law. Instead of the law of the state of their common habitual residence, they can choose the law of the state to which one of the two belongs. If, for example, a French and a Turkish woman have their place of residence in Germany, they can also choose Turkish or French marriage law instead of German marriage law. Because the protective purpose of the right to vote is to preserve the cultural identity of the spouses, the right to vote does not exist if one of the spouses has the nationality of the state in which the spouses live together.

Other connection

Only if the partners neither have or had a common nationality nor a common place of habitual residence in a country does it have to be determined with which law the two are most closely connected in other ways (for example through their life). To protect their cultural identity, however, they can also choose the law of the state to which one of the spouses belongs for the general effect of the marriage.

Provisions of German law

Marital partnership

See main article: Cohabitation

Marriage ends in conjugal cohabitation . Each partner can request their creation, provided that this request is not abusive. Until the 1st Equal Rights Act of 1957, men had the right to make decisions in all matters relating to community life, in particular about the home and place of residence. Accordingly, a married woman could not establish her own place of residence , but instead shared her husband's place of residence by law. The right to decide, however, did not affect the woman's personal affairs.

How the partners fill out their cohabitation, especially how the common household is run, is left to their self-determination. Until July 1st, 1977 ( First Law to Reform Marriage and Family Law, 1st EheRG), women were entitled and obliged to lead the common household in accordance with the model of housewife marriage. She was also obliged to work in the household and business of the husband, insofar as such an activity was customary according to the circumstances in which the spouses lived. Up until 1957, the downside of housewife marriage was that the man had to agree to contracts in which the woman undertook to provide highly personal services to third parties (especially employment contracts ). If the wife undertook without consent, the husband could terminate the contract with the authorization of the guardianship court without observing a period of notice . The guardianship court had to grant authorization if the woman's activity impaired marital interests.

Power of keys

See main article: Keys

As a consistent expression of the cohabitation, each of the two partners is authorized to do business to cover the common living needs of the family, also with legal effect for the other (→ power of the keys ). As a rule, this means that both are entitled and obliged. Each of the two partners can restrict or exclude the other's key power, but may have to object to the good faith of a third party in the power of representation if the restriction or cancellation was not entered in the property law register or was known to the third party. Until the model of housewife marriage was abolished by the Marriage Law Reform Act 1977, only the wife was entitled to key power, with whom she was able to conduct business with the husband within her domestic sphere of activity and thereby authorized and obliged the husband.

Marital maintenance

See main article: Spousal support

Spouses are obliged to provide mutual maintenance , to cover the necessities of life in a free distribution of roles among themselves. In a single- wage marriage, the income-free partner is entitled to pocket money .

Married name

For details, see also married names in Austria and Switzerland under: Name law

Originally the name of the husband was the married name (→ patrilinearity ). After a divorce , the woman could either keep the married name or take her maiden name again. If she was divorced guilty, the divorced husband could forbid her to wear the married name.

Since 1977 (1st law on the reform of marriage and family law), the partners can choose either the name of one or the other partner as a common family name . The person whose name is not determined as a family name can prefix or add his previous family name to the common family and married name with a hyphen (from 1958 to 1977 the wife could add her old family name to the common family name - i.e. the name of the husband).

Since the Family Law Act of 1994, both partners can keep their previous family names, but they have to agree which of the two names the children should have. A double name from the names of the parents is not possible for the children.

Property regimes

See main article: Property law

Applicable Law

The legal system that applies to property law is the same as that which applies to the law of general marriage effects. However, the spouses have a wider choice of law. You can also choose the property law of the state to which one of them belongs, where one of them has his habitual residence or, with regard to immovable property, the law of the location.

Provisions of German law

Property law is one of the indirect effects of marriage . A distinction is made between property regimes, which do not change the property and financial situation of the partners before and after the marriage through the marriage (community of gains , separation of property) and a matrimonial property regime, which includes the property and other assets of the engaged couple that existed before the marriage except for the conditional property and the Assets acquired in the partnership are transferred into joint ownership ( community of property ).

In terms of property law, the three property regimes of the BGB are important:

  • The statutory property regime has been the community of gains since 1958. According to this, each partner manages his assets, which he has acquired before and during the partnership, in principle alone. At the end of the partnership, the partner who has achieved a lower increase in assets is entitled to an equalization of gains under the law of obligations in the amount of half the difference between the two gains .
  • The property regime of the separation of property can only be achieved through a marriage contract . As with the community of gains, the partners' assets remain separate. A gain adjustment does not take place.
  • A marriage contract is also required to establish the - now rare - property regime of community of property. The partners' participation in each other's assets takes place during the partnership, i.e. not through a later equalization of profits. When the marriage is entered into, different sets of assets arise in the form of common property and the respective special or reserved property. This property regime is often problematic for reasons of liability as well as for reasons of practicality.

In the GDR , the property regime of the property and property community existed from 1966 until reunification . It was a so-called community of achievement, in which the spouses share in each other's wealth growth, similar to the community of gains, but already during the existence of the marriage. Here, too, (as in the case of the federal German community of property) different assets were created (joint "property" and the respective "sole property"). This was regulated in the Family Code of the GDR .

On October 3, 1990, GDR marriages were transferred to the statutory matrimonial property regime of the BGB through the investment provisions of the Unification Treaty ( Art. 234 § 4 EGBGB ).

In the German Reich (from 1900) and in the Federal Republic of Germany , apart from the separation of property and the community of property, there was also the administrative community, the car sharing community and the community of achievements until 1957 .

Child law, inheritance law

See main articles: Custody , Inheritance Law

The children born by the wife automatically acquire the legal status of common children in a mixed-sex marriage. This applies regardless of biological paternity, see Father # Determining paternity . In order to legally delete a non-biological paternity, the husband must contest paternity . In the case of lesbian couples, stepchild adoption is required to recognize parenthood of the non-birthing spouse. Likewise, unlike spouses, life partners are not by law the common parents of a child born during the partnership.

In the Federal Republic of Germany, since the Childhood Law Reform Act came into force on July 1, 1998, no distinction has been made between legitimate and illegitimate children. In the case of custody, however, the matter is still linked to these facts. For a detailed description see under child law .

Spouses are mutually entitled to inheritance to a certain extent . You can make a joint will . This also applies to life partners. Both spouses and life partners receive a compulsory portion .

Other legal privileges

In social security law , marriages are favored in many ways, for example in health insurance through the contribution-free co-insurance of the spouse ( family insurance ) or in statutory pension insurance through the entitlement to a survivor's pension.

Tax law is for spouses and partners the possibility of joint assessment .

End of marriage

When it comes to reasons for abstaining from marriage, a distinction is made between circumstances that already existed at the time of the marriage and circumstances that only occurred after the marriage.

Shortcomings in marriage

See main articles: Annulment of marriage , non-marriage , marriage prohibitions

As shown for the admissibility of the marriage , the shortcomings in the marriage, including their legal consequences and healing options, are based on the legal system of the state to which the fiancé belongs. German law provides for the legal consequence of annulment of the marriage .

Subsequent circumstances

The dissolution of an initially flawless marriage due to circumstances that occurred after the marriage was concluded is made possible by the divorce . The marriage also ends with the death of one of the spouses.


For divorce, the legal system is called, on the right of the general marriage effect at the time of lis pendens is the divorce petition application. If one of the spouses is German and the marriage cannot be divorced, German law applies.

German law always applies to the form of divorce (divorce by judgment of a family court ) in Germany, regardless of the nationality or the residence of the spouse.

Provisions of German law

See main article: Divorce

A marriage can only be divorced by a court judgment at the request of one or both spouses ( Section 1564 sentence 1 BGB). The legal requirements under which a divorce can be applied for are ( § 1564 sentence 2 BGB):

  • The failure of the marriage, ie the cohabitation of the spouses no longer exists and it cannot be assumed that the spouses will restore it ( Section 1565 (1) BGB).
  • Although the marriage has failed, the marriage should not be divorced if and as long as the maintenance of the marriage is exceptionally necessary in the interests of the minor children resulting from the marriage for special reasons or if and as long as the divorce for the respondent who rejects it is due to extraordinary reasons Circumstances would represent such severe hardship that maintaining the marriage seems advisable as an exception, even taking into account the interests of the applicant ( Section 1568 (1) BGB).
  • Live separately
    • If the spouses have not been separated for a year, the marriage can only be divorced if the continuation of the marriage would represent an unreasonable hardship for the applicant for reasons relating to the person of the other spouse ( Section 1565 (2) BGB) .
    • If the spouses have been separated for at least a year, both must file for divorce or the respondent must agree to the divorce request ( Section 1566 (1) BGB). There is a financial incentive for the spouse with a lower income to refuse this consent, since the gain compensation and the pension compensation increase with a longer marriage.
    • If the spouses have been separated for at least three years (and the applicant can prove this), the consent of the respondent is no longer required ( Section 1566 (2) BGB).

A short-term coexistence, which serves the purpose of reconciliation, but fails, does not interrupt the year of separation ( Section 1567 (2) BGB).

A marriage, the validity of which is judged differently in different countries, is called a limping marriage . This situation can arise, for example, in the event of a divorce abroad.


In Germany, a total of 18.312 million marriages were counted in 2009. Of these, around 10 percent were childless at the time. The number of registered civil partnerships was around 19,000 in 2009, a good one per thousand of the number of marriages, but rose to 44,000 by 2016. According to the Zypris study, the male part (12,000 at the time) of the registered civil partnerships was almost exclusively childless in 2009. Overall, between 85% and 93% of registered civil partnerships were childless.

Canon Law

See main article: Marriage Law (Catholic Church)

Many religious communities also attach particular importance to marriage . Therefore, the law of various religious communities, the church law , deals with marriage. Depending on the religious community, this ecclesiastical marriage law also differs considerably. Religious law can also become authoritative for civil marriage in Germany if, in the case of a binational marriage, the home law does not accept the order of application of German IPR and instead refers to religious law. German courts and authorities have to respect this decision. Syrian law, for example, does not have its own marriage law, but rather refers to the religious law determination of the religious community to which the spouse belongs. The catholic law of the codex iuris canonici can also claim validity. The certification of a marriage by a clergyman may also be effective under civil law if both fiancés are foreigners.

See also


To the married name

  • Henrich / Wagenitz / Bornhofen: German naming law, 4th delivery 2007. Verlag für Standesamtwesen GmbH Frankfurt am Main Berlin, ISBN 978-3-8019-3506-1 . An excerpt on the development of married name law can be found in the section before Section 1355 BGB and is available online as a PDF.

Web links

Individual evidence

  1. See same-sex marriage # Germany .
  2. BVerfG, 1 BvL 10/05 of May 27, 2008 .
  3. especially after the abolition of wreath money
  4. §2, paragraph 145 in Christian von Bahr, Internationales Privatrecht Volume II, CH Beck Verlag
  5. Section 15a (1) sentence 2 PStG ; since 2009 § 34 Abs. 2 PStG 2009.
  6. § 15a Paragraph 1 No. 1 PStG since 2009 § 34 Abs. 1 PStG 2009.
  7. ^ [1] Marriage by a captain of a German ship is ineffective.
  8. Getting married at sea . UNIQ GmbH
  9. The legal partnership only differs in the name.
  11. Act amending the Income Tax Act in implementation of the decision of the Federal Constitutional Court of May 7, 2013 of July 15, 2013 ( Federal Law Gazette I p. 2397 )
  12. According to the microcensus, cited from the German Bundestag, printed matter 17/3009: The Federal Government's response to the minor question from the MPs Dr. Barbara Höll, Harald Koch, Cornelia Möhring, other MPs and the Die Linke parliamentary group on September 23, 2010.
  14. The living situation of children in same-sex civil partnerships - detailed summary
  15. Marina Rupp (ed.): The life situation of children in same-sex partnerships . Bundesanzeiger Verlag, 2009, ISBN 978-3-89817-807-5 .