Law amending the law on maintenance

from Wikipedia, the free encyclopedia
Basic data
Title: Law amending the law on maintenance
Short title: UÄndG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Private law , family law
Issued on: December 21, 2007
( Federal Law Gazette I p. 3189 ,
with wording of the legal text)
Entry into force on: January 1, 2008
GESTA : C056
Please note the note on the applicable legal version.

The law to amend the law on maintenance ( UÄndG ) came into force on January 1, 2008 and regulated changes to promote the best interests of the child , to strengthen post-marital responsibility and to simplify maintenance law . In addition to the CDU and SPD coalition factions at the time , the FDP and the Greens also approved the law in the Legal Committee . The left voted against. Alliance 90 / The Greens had previously failed with an amendment to exempt maintenance claims from marriages concluded before 2003 from the new regulation after the Federal Ministry of Justice had classified this as constitutionally questionable. According to a survey by the Bertelsmann Stiftung , the population judges the reform largely as positive.

Changes by law

Priority of the child's best interests

Maintenance claims of minor legitimate and illegitimate children take precedence over others if the income of the person liable for maintenance after deducting the deductible is not sufficient to meet all claims. While the claims of divorced and current spouses previously had equal rights to those of the children, claims of adults are now always subordinate.

The best interests of the child are now also in the foreground in the ranking of dependent adults. Priority is given to parents who raise a child together or alone, regardless of whether they are or were married. Spouses after a long marriage, whose trust in marital solidarity is particularly protected even after a divorce , have the same rank . Divorced spouses who have only been married for a relatively short time and who do not look after children are only last in the ranking and only receive maintenance if all claims of the children, the parents raising children and the divorced who have been married for many years have been met.

The entitlement to care maintenance against the other parent due to the upbringing of a common child is limited to three years for legitimate and illegitimate children, unless there are specific reasons against it in individual cases. Afterwards, reference is to be made to childcare options and the obligation to work on one's own .

Emphasis on post-marital personal responsibility

According to the old legal situation, maintenance claims could be limited in terms of time or amount with reference to the principle of personal responsibility . However, family courts only used this option very cautiously, which particularly stressed second families. The basis for the maintenance claim was primarily based on the marital living conditions, which often made returning to the profession unattractive.

The reforms have strengthened the possibilities of setting time limits and limiting payments, whereby the standard of living achieved in marriage is only one of several aspects of whether and to what extent employment has to be resumed after the divorce. In addition, the length of the marriage and the actual distribution of roles must be taken into account. The Federal Minister of Justice, Brigitte Zypries , who was in charge of the draft law , stated:

“ Once a dentist's wife always a dentist's wife, that no longer applies. "

When raising children together, the childcare options actually available play a greater role than before. A waiver of maintenance claims, however, is only effective if both parties have been fully informed about the consequences. Maintenance agreements before the divorce must therefore be notarized .

Simplification of maintenance law

A uniform minimum maintenance for underage children based on the tax-free child allowance has also been introduced as a replacement for the standard amount regulation and simplified child benefit accounting . This means an adjustment of the maintenance law to the tax and social law , which together with the priority regulation makes the assessment of maintenance claims by the courts much easier.

Implementation in case law

The Federal Court has developed on the basis of the new law, the so-called "three-division method." According to this, maintenance claims of divorced persons arose after remarriage of the person liable for maintenance by summarizing the income of the person entitled, the person obliged and the new spouse and dividing it by three, whereby the person entitled was entitled to the maximum amount of maintenance that would have resulted if the person obliged had not remarried. This regularly meant relief of the second families at the expense of maintenance claims from previous marriages. The reason given was that "the living conditions of a divorced marriage, which are decisive for the amount of maintenance required, can undergo changes regardless of whether these were created in the marriage."

However, the Federal Constitutional Court overturned this case law in 2011, since the legislature also adhered to the principle during the 2008 reform that the maintenance requirement should be based on the living conditions at the time of the divorce. The "tripartite method" goes beyond the boundaries of judicial legal training and injures dependents in their economic freedom of action as an expression of the general freedom of action under Article 2 of the Basic Law.

Effects

A study by the RWI - Leibniz Institute for Economic Research found in 2017 that the employment of married women has not increased more than that of women who have lived with a partner without being married, although in the event of a divorce significantly less maintenance and its time limit can be expected be. Accordingly, one of the main objectives of the reform had been missed, "namely to increase the ability of women to be able to provide for their own living after the divorce". The only demonstrable effect is that more married couples separated in the first two years afterwards.

At the same time, according to the database of the Socio-Economic Panel and figures from the Federal Statistical Office , 95 percent of all maintenance payments were still made to women. In almost 30 percent of all couples with children, only the man is gainfully employed, in five percent only the woman.

literature

Individual evidence

  1. ↑ Maintenance law 2008: Comparison of the legal changes (PDF; 126 kB) at: Treutler Rechtsanwälte, Regensburg
  2. ^ A b Reform of maintenance law 2008 at: Treutler Rechtsanwälte, Regensburg
  3. ↑ a b Survey: Consequences of the new maintenance law still unknown , press release of the Bertelsmann Stiftung from May 27, 2009
  4. ↑ Werner Mathes: Reform of the maintenance law: "We all swim still" in: Stern from March 4, 2009
  5. ↑ a b Christoph Schäfer: Why the new maintenance law partially failed , Frankfurter Allgemeine Zeitung, October 30, 2017.
  6. ↑ New case law on the calculation of post-marital maintenance using the so-called tripartite method, unconstitutional , Federal Constitutional Court - Press Office, press release no. 13/2011 of February 11, 2011
  7. ↑ Julia Bredtmann, Christina Vonnahme: Less Alimony after Divorce - Spouses' Behavioral Response to the 2008 Alimony Reform in Germany , Ruhr Economic Papers # 702, RWI Leibniz Institute for Economic Research u. a., July 2017.