Family law (Germany)

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The family law is the branch of civil law that the legal relations by marriage , civil partnership , parentage and kinship founded legal relationship between individuals governs. This includes the Kindschafts- , Adoption and the divorce law and outside the relationship existing statutory powers of representation in the case of guardianship , foster care and legal assistance .

In addition, family law affects the relationship between families and the state. Art. 6 GG secures the institute guarantee as well as the state protection and promotion requirement of the family as a fundamental right . The guarantees of Art. 6 GG go beyond the private law of families and also influence, for example, tax law ( spouse splitting ) or justify the introduction of parental allowance .

history

The modern family law, in Germany codified in particular in the fourth book of the Civil Code ( § 1297 BGB ff.), In Austria in the General Civil Code and in Switzerland in the Civil Code , is historically from the Roman private law , the canon law and local customary law emerged .

Based on the Twelve Tables law of the Roman Republic, family law received significant impulses during the Reformation from the parallel state and church marriage ( contractus mixtus ) formulated by Martin Luther , as a result of which a state marriage law developed alongside church law. The Council of Trent finally resulted in compulsory civil marriage . Code Napoleon (1804) and the General Prussian Land Law (1794) mark the first modern codifications of family law under the influence of the Enlightenment , replaced by the Civil Code with effect from January 1, 1900 .

Between 1965 and 1990 the family code was in force in the GDR .

The latest legal history is characterized by a standardization within the framework of the European Union, for example by the Commission for European Family Law with a simultaneous pluralization of family coexistence.

Since Plato's works Politeia and Nomoi , legislation has been influenced by a family policy debate in academia and the public as well as social change .

Substantive law

Family law contains provisions on entering into marriages and civil partnerships and their termination . The general legal effects of marriage (or civil partnership), marital or civil partnership property law and divorce (or annulment of the civil partnership) and their legal consequences, such as maintenance and pension compensation, are specifically regulated. There are also provisions on the legal status of conjugal unions and engagement .

It also contains provisions on descent and mutual maintenance obligations of relatives, on rights and obligations between parents and children and on adoption , summarized under the term child rights .

In the event of disputes or disagreements with regard to custody, care and guardianship and other family matters , the family court or the custodial court (formerly: guardianship court) decide .

In Germany, substantive family law is essentially contained in the fourth book of the same name of the German Civil Code (BGB) ( sections 1297–1921 BGB ). The legal institution of the civil partnership is regulated in the Civil Partnership Act (LPartG). The Code of Civil Procedure (ZPO) and the Act on Procedure in Family Matters and Matters of Voluntary Jurisdiction (FamFG), which has replaced the Act on Matters of Voluntary Jurisdiction (FGG), contain special provisions for judicial proceedings . The maintenance advance law and the Düsseldorf table are also important for child maintenance law . The standard requirement regulation expired in 2008.

In the GDR, family law had been regulated outside of the BGB in a separate family code (FGB) since 1965 .

International private law

Marriage law

According to Art. 13 EGBGB, the material requirements of marriage are subject to the law of the country of each fiancé. To the marriage conditions include, for example, the marriageable age and the lack of marriage obstacles . One distinguishes between

  • unilateral marriage requirements and
  • bilateral marriage requirements.

Unilateral marriage requirements only have to be met according to the law of the respective fiancé, bilateral marriage requirements at the time of marriage according to the law of both fiancés.

Example: A single German wants to marry a married Jordanian.
According to the home law of the married Jordanian, marriage is possible despite an existing marriage. However, the prohibition of double marriage according to § 1306 BGB is interpreted as a bilateral obstacle to marriage and consequently no marriage may exist for both future spouses.

According to Section 1309 of the German Civil Code (BGB), there is a requirement for a certificate of marital status . This also applies to a foreign marriage statute. According to Section 1309 (2) of the German Civil Code (BGB) an exemption can be granted.

In exceptional cases, according to Art. 13 Para. 2 EGBGB, German law may apply to the marriage requirements. This version of Art. 13 EGBGB goes back to a decision of the Federal Constitutional Court of 1971 (BVerfGE 31, p. 58); According to the law of the time, marriage was not possible if, like for example Spain, the law of the country of origin did not recognize a German divorce decree and thus the marriage impediment of double marriage existed.

For the form of marriage , according to Art. 13 Paragraph 3 EGBGB, the marriage in Germany can only be concluded according to the formal requirements of § § 1310 to § 1312 BGB. For marriage abroad, the general rules of Art. 11 EGBGB apply . This also applies to the so-called glove marriage , i. H. marriage by proxy.

The right of general marriage effects is determined in Art. 14 EGBGB. Excluded from its regulatory area are regulatory areas that have been regulated by their own:

The applicable law is determined in Art. 14 Para. 1 EGBGB according to objective, graded, subsidiary links (so-called Kegel ladder) . Art. 14 para. 2 EGBGB also allows the choice of law under certain circumstances.

The matrimonial effects of marriage are subject to the marriage statute of Art. 14 EGBGB. Art. 15 para. 2 EGBGB permits an independent, restricted choice of law. The third-party protection norms of German law (negative publicity of the property law register according to § 1412 BGB) apply according to Art. 16 EGBGB also to foreign property regimes, as far as the spouse has his habitual residence in Germany or operates a trade.

According to Art. 17 EGBGB, the divorce is subject to the marriage statute of Art. 14 EGBGB. Alternatively, German law according to Art. 17 (1) sentence 2 EGBGB can be applied if the marriage is indivisible according to the divorce statute and the applicant had German citizenship in the case of lis pendens or marriage. In Germany, according to Art. 17 Para. 2 EGBGB, a divorce is only possible through a court judgment; Abroad, however, a divorce can also take place through a private act (cf. talaq in Islamic law and get under Jewish law). The pension equalization is generally subject to the divorce statute, with the proviso that the legal institution is known to one of the local laws.

The EGBGB does not contain any collision rules for the engagement . The provisions on marriage ( Art. 13 Para. 1 and 2 EGBGB and Art. 11 Para. 1 EGBGB) apply accordingly to the establishment. According to prevailing teaching, claims from breach of engagement are dealt with in accordance with Art. 14 EGBGB.

The illegitimate cohabitation has also not received any special regulation. Art. 17b EGBGB only applies to registered homosexual partnerships. Its analogous application to registered heterosexual partnerships is being considered in part. According to hM, the family law conflict of laws apply analogously to the illegitimate cohabitation. If it is only a casual relationship, a simple contractual qualification should be considered.

Childhood law

Procedural law plays an important role in child-related matters : most international conventions state that the lex fori is applicable. With the decision on jurisdiction , the decision on the applicable law has usually been made.

→ Hague Convention for the Protection of Minors
→ Hague Child Protection Convention
→ Regulation (EC) No. 2201/2003 (EuEheVO)
→ Hague Convention on the Civil Aspects of International Child Abduction
→ European Custody Convention

The parentage can be determined according to Art. 19 EGBGB according to three legal systems:

The relevant point in time of the determination is disputed; according to the prevailing opinion , the time of birth should be taken into account. The renvoi does not take place: The aim of the referrals is to provide the child with the greatest possible number of legal systems. If the renvoi were to reduce this number, this would be contrary to the meaning of the referral.

The effects of the parent-child relationship include parental custody . According to Art. 21 EGBGB, they are subject to the law of the state in which the child is habitually resident. If the child changes their habitual residence, this right changes. According to the prevailing opinion, referral back and referral should be observed.

For adoption , the Hague Convention on the Protection of Children and Cooperation in the Field of International Adoption has priority. In the autonomous law applies: If a Single person as a child , so this is subject to type the 22nd EGBGB its national law at the time of adoption; for spouses, the marriage statute of Art. 14 EGBGB applies. Regardless of the wording of the law ("child"), these rules also apply to adult adoption. The scope of application includes the admissibility, requirements and effects of the adoption.

Whether the inheritance law of the adopted child is subject to the inheritance statute or the adoption statute has long been a controversial question of qualification . By Art. 22 para. 2 BGB has now decided that the impact of the adoption of inheritance subject to the to succession to the relationships the adoption statute, nature and scope.

Procedural law

The district courts have departments for family matters, family courts. The family senates at the higher regional courts are responsible for complaints against the decisions of the family courts.

In the legal profession, it is possible to acquire the special professional title of a specialist lawyer for family law with the appropriate specialization .

See also

literature

Web links

Individual evidence

  1. ↑ Irene Gerlach : Family, Family Law and Reforms bpb , January 9, 2015
  2. ↑ Ursula Floßmann , Herbert Kalb : History of Private Law, Short Structure of the Lectures, University of Linz, accessed on August 8, 2017
  3. ^ Theodor Bühler: Familienrecht Historisches Lexikon der Schweiz , October 24, 2005
  4. ↑ Irene Gerlach : Family Policy: History and Concepts bpb , March 20, 2009
  5. ↑ Family law website of the European Commission , as of April 27, 2016
  6. ↑ Armin Czysz: Europa und die Familie eu-info.de, accessed on August 8, 2017
  7. ↑ cf. For example: Symposia for European Family Law Website of the University of Regensburg / Anatol Dutta, March 31, 2017
  8. ↑ Legislation: Before - After EMMA , January 1, 2012