Equal Rights Act

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Basic data
Title: Law on equality between men and women in the field of civil law
Short title: Equal Rights Act
Abbreviation: GleichberG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Family law
References : 400-3
Issued on: June 18, 1957
( BGBl. I p. 609 )
Entry into force on: July 1, 1958
Last change by: Art. 127 G of April 19, 2006
( Federal Law Gazette I p. 866, 883 )
Effective date of the
last change: 		April 25, 2006
(Art. 210 para. 1 G of April 19, 2006)
Please note the note on the applicable legal version.

The Equal Rights Act should implement the mandate of the Basic Law according to Article 3, Paragraph 2, “Men and women have equal rights”, in concrete federal law .

Order of the Basic Law

Many laws that were in force even after the Basic Law came into force contradicted the now constitutionally anchored equality of men and women. With Art. 117 GG of the Basic Law promulgated on May 23, 1949, the federal legislature was therefore required to convert an outdated, traditional family law from the 19th century into a new understanding of family through a fundamental reform . The relevant provisions were to be adapted to the principle of equal rights by March 31, 1953.

However, the federal government allowed this deadline to pass without having changed anything in terms of marriage law and parental authority , which was still almost exclusively the responsibility of the husband. Alongside other conservative circles, the churches had also issued statements warning against disrupting the “natural marriage order” through equality.

First bill

It was not until October 23, 1952, that the federal government under Konrad Adenauer submitted a draft law ( Bundestag printed paper 1/3802). This draft contained a number of apparently still unconstitutional provisions. For example, the man was still granted sole right of decision within the marriage ( obedience paragraph : § 1354 BGB draft). Since the parliamentary treatment of the draft law was slow - motions of the SPD parliamentary group to accelerate it were rejected - the date of March 31, 1953 could not be kept. An attempt by the government coalition to postpone the deadline for legal amendment by changing the constitution by two years failed because of the contradiction between the SPD and the KPD.

Lawless State

Thus, on April 1, 1953, a “lawless” situation occurred as regards the equality of men and women within marriage and with regard to parental violence . The Higher Regional Court in Frankfurt am Main , which wanted to deny the constitutional significance of the deadline set in Article 117 of the Basic Law, submitted the question to the Federal Constitutional Court , which thereupon clearly stated in its judgment of December 18, 1953 that "since the expiry of the Article 117 set deadline ... men and women (have) equal rights in the area of ​​marriage and family ”( BVerfGE 3, 225).

Article 3, Paragraph 2 of the Basic Law is a “genuine” legal norm that establishes direct rights and obligations ; it is the task of the courts to fill the legal vacuum with their resources. In the reasoning for the judgment, however, the prohibition of differentiation was restricted. A number of provisions in conflict with the principle of equal rights were therefore to be regarded as null and void, but this had to be determined by the courts in individual cases. B. the loss of parental authority of the widowed woman if she remarried (in § 1697 BGB old version), since this did not apply to the remarried widower.

Another legislative proposal

The draft law of 1952 was reintroduced into the Bundestag by the Federal Government without any substantive changes (in the earlier draft only the Marriage Act 1946 was to be reintegrated into the BGB) and, after violent disputes, led to the resolution of the Equal Rights Act in the Bundestag on May 3, 1957, which was issued on June 18 ( BGBl. 1958 I p. 609 ) and came into force on July 1, 1958.

Central points of the law on equality between men and women, which came into force on July 1, 1958:

  • The husband's right of final decision in all marriage matters is deleted without replacement.
  • The husband's obligation to provide for the family remains.
  • The Zugewinngemeinschaft solved the Nutzverwaltung as legal property regime from. Women are allowed to manage the assets brought into the marriage themselves. Until then, men were allowed to dispose of the wealth of women.
  • The husband's right to terminate his wife's employment without notice if he has been authorized to do so by the Guardianship Court upon his application is revoked ( until July 1, 1977 , the wife was only allowed to work if this was with her duties in marriage and Family was compatible, and the partnership principle has been in effect since 1977, according to which there is no longer a legally prescribed division of tasks in marriage).
  • The woman has the right to use her maiden name as an addition to her name after her marriage (since July 1, 1977, the spouses can use either the husband's or wife's name as a joint married name and since 1994 both spouses can keep their old family name).
  • The paternal prerogatives in bringing up children are restricted, but not completely eliminated until 1979.

The main controversial issues were the male decision-making right in all marital matters (which was then not included in the law) as well as the paternal casting vote in the event of a disagreement between father and mother in questions of parental authority (§ 1628 BGB old version) and the claim to sole representation in the case of the legal representation of the child (§ 1629 Abs. 1 BGB old version). The German Association of Women Lawyers brought a complaint to the Federal Constitutional Court against this. In July 1959 the passage on the casting vote was declared unconstitutional and null and void.

However, in the event that the couple could not agree on a common name at the time of marriage, the husband's name became the married name. This casting vote was declared in March 1991 by the Federal Constitutional Court to be incompatible with the equality requirement of the Basic Law. In such a case, or if it is desired to keep the previous family name, both continue to use their names today .

Further case law

In 1959, the Federal Constitutional Court emphasized the constitutional status of full equality between father and mother in the area of ​​parental authority. By judgment of July 29, 1959 (BVerfGE 10, 59 = BGBl. I p. 633 = FamRZ 1959, 416 = NJW 1959, 1483), the Federal Constitutional Court therefore declared Section 1628 BGB and Section 1629 (1) BGB to be null and void due to violation of the Equal treatment requirement.

Individual evidence

  1. ↑ BVerfGE 3, 225
  2. ↑ taz : 50 years of equality by law - When the man was still godlike , July 1st, 2008
  3. ↑ BVerfG, judgment of July 29, 1959, Az. 1 BvR 205, 332, 333, 367/58, 1 BvL 27, 100/58, BVerfGE 10, 59 - Parental authority.
  4. ↑ Hildegard Gorny, Feminist Language Criticism . In: Georg Stützel, Martin Wengeler: Controversial terms. History of public language use in the Federal Republic of Germany , de Gruyter, 1995, p. 517 ff. ISBN 3-11-014652-5 . P. 544 .
  5. ↑ BVerfGE 10, 59

Web links

literature

  • Edgar Friedrich, Fritz Merdsche : Equal Rights , Publisher Commentator, 1958
  • Karen Hagemann, Jan Kolossa: Equal rights. Same duties? The women's struggle for 'civil' equality ; VSA 1990, ISBN 978-3879755288
  • Mechthild Koreuber, Ute Mager (editor): Law and gender: Between equality, equality and difference , Nomos-Verlag 2004, ISBN 978-3832907822
  • Olaf Radke, Wilhelm Rathert: Equal Rights? , European Publishing House 1964