Cohabitation

from Wikipedia, the free encyclopedia

The marriage-like community is an indefinite legal term that is mostly used in connection with the granting and withdrawing of public services for those persons to whom the defining characteristics of the marriage-like community apply. It is the legalized form of the term wild marriage or "marriage without a marriage certificate " and describes the coexistence of (usually two) people (depending on the state also of the same sex) according to the type of married couple , but without these being formally married. In Switzerland , the term is concubinage customary in Austria the legal term is generally to Non-marital cohabitation (NEL), regardless of the sex of the participants. In Germany, the term life partnership-like community ( Life Partnership Act ) is also used for same-sex partnerships .

background

Social benefits in case of need

In Germany and in many other countries there are a number of state social benefits that are only granted when people are in need . Those who can ensure their livelihood by themselves or with the help of others are not in need and therefore receive no support.

marriage

In German-speaking countries, only someone who has married his or her life partner in a formal procedure is deemed to be “married” by law. In this respect, the word “marriage” in the term “marriage without a marriage certificate” is not to be understood literally. Among other spouse are mutually the maintenance obligation. If a spouse does not have sufficient income or assets, he can demand maintenance from his capable spouse. Because of his lack of need, he is therefore not entitled to state welfare benefits . If the maintenance claim were not taken into account, on the other hand, housewives, for example, who do housework and raise children without their own income, would have entitlements to social benefits, which would be associated with considerable costs for the social security provider. Unmarried working partners who look after a child or children would be advised by the state that they were primarily obliged to earn their own living.

Welfare services for partners in a cohabiting community

If people live together as in a marriage, but without formally entering into a marriage, they should not be better off than spouses in terms of the requirements and the scope of social benefits. Although they are not entitled to maintenance under family law, such conjugal unions are treated as if they were mutually supportive.

Since cohabiting partnerships do not enjoy the privileges of spouses, such as spouse splitting under tax law or non-contributory family insurance in health insurance, it is criticized as unfair that they are treated like spouses with regard to the refusal of social benefits. It is also pointed out that unmarried couples, unlike spouses, cannot claim maintenance from their partner.

Germany

1958 to 1992

The " marriage-like community " was "born" in 1956 when Section 149 (5) of the Law on Employment Services and Unemployment Insurance in the version of December 23, 1956 stipulated that the income and assets of partners in a marriage-like community should be taken into account when calculating unemployment benefits may.

On December 16, 1958, the Federal Constitutional Court (BVerfG) ruled that this legal norm was constitutional.

In the period from 1958 to 1992, the authorities automatically assumed a marriage-like union as soon as a man and a woman lived together in the same apartment, which was a particular problem for many student communities.

In the period from 1958 to 1992, the Federal Administrative Court saw the marriage-like community as a "living and economic community" between a man and a woman. Inner ties played just as little role as the existence or non-existence of maintenance obligations or actual support. Even then, sexual relationships did not play a role (which meant that people who had no sexual relationship at all were classified as being married). The only decisive factor was “one-pot management”. However, the actual existence of a joint cash register or account or joint planning of expenses was not required. It was assumed that this was not the case with many married couples either.

1992 to 2006

In 1992, the definition of a marriage-like community changed fundamentally through a judgment of the BVerfG.

In the decision BVerfGE 87,234 it is said that married couples may not be disadvantaged compared to people who live in unmarried communities with regard to the requirements and scope of social assistance or unemployment assistance.

"If the legislature remedies the constitutional deficiencies of this regulation, then § 137 para. 2a AFG, according to which, in the means test, the income and assets of a person who lives in a cohabiting relationship with the unemployed, as well as the income and assets of a spouse who is not permanently separated are to be taken into account, compatible with constitutional interpretation with the Basic Law. "

In this decision BVerfGE 87,234, the BVerfG defines exactly when a marriage-like union exists:

"A marriage-like community only exists if there are such close ties between the partners that they can be expected to stand up for each other in the emergencies and vicissitudes of life (community of responsibility and responsibility)."

The reasoning for the judgment also gives a specific definition with specific criteria. This has been in force since 1992:

“The cohabitation is a typical phenomenon of social life. It stands out clearly enough from other communities. With the term “marriage-like”, the legislature has clearly linked to the legal concept of marriage, under which the cohabitation between a man and a woman is to be understood. What is meant is a relationship between a man and a woman that is long-term, does not allow any other relationship of the same kind and is characterized by internal bonds that justify mutual responsibility for the partners, i.e. through relationships in a purely household and business community go out. "

For a marriage-like union to exist, the following criteria must be met:

  • It has to be a partnership between man and woman (not a same-sex community).
  • The community must be clearly designed to last.
  • It must not allow any further communities of the same type (in particular, this does not mean residential communities, since such communities can be expanded at will).
  • There must be internal ties that establish mutual responsibility between the partners.

This means in particular that sexual contacts do not constitute a marriage-like relationship. Recognized criteria for a marriage-like community in the period from 1992 to 2006 were in particular:

  • Actual material support, particularly recognizable from a joint account between the partners
  • Actual maintenance claims, for example from a child together

Exclusion criteria for a marriage-like community included:

  • Other marriage
  • Community has only existed for less than 3 years
  • Community consists of two men or two women

In order to prove the existence of a marriage-like union to applicants, inspectors were sent to the households of the applicants so that they could collect evidence of the existence of a marriage-like union there. However, the refusal of such a viewing of the apartment is covered by the fundamental right to the inviolability of the apartment according to Art. 13 GG. The State Social Court of Saxony-Anhalt ruled in the decision of April 22, 2005, Az.L 2 B 9/05 AS ER:

"The refusal to inspect the apartment by an employee of the authority is covered by the fundamental right to the inviolability of the apartment according to Art. 13 GG; for that reason alone it must not be seen as a concession from a marriage-like community. It is also questionable whether facts relevant to the decision can be found during a home visit because the intimate sphere cannot be explored in order to establish a marriage-like relationship; in particular, sexual relationships are not decisive for the marriage-like community and may not be determined (BVerfG, judgment of November 17, 1992, BVerfGE 87,234; decision of December 16, 1958 - 1 BvL 3/57, 4/57 and 8/58 - SozR No. 42 to Art. 3 GG = BVerfGE 9 S. 20). "

2006 until today

In 2005, the Düsseldorf Social Court found that cohabiting communities were disadvantaged compared to homosexual communities without maintenance obligations.

"In particular in the relationship of the illegitimate cohabitation (between a man and a woman) and the similar relationship between two homosexual partners, this regulation is likely to constitute a violation of the principle of equality (Article 3 of the Basic Law)."

- Düsseldorf Social Court : file number S 35 SO 28/05 ER

This alleged discrimination against heterosexuals together with an impression of the factual impossibility of proving a marriage-like community for the courts led to an amendment coming into force on August 1, 2006 with the law on the further development of basic security for job seekers . The term “marriage-like community” disappeared from social law after 50 years and was replaced by a different formulation. In addition to marriage and the registered civil partnership, every heterosexual or homosexual community of responsibility and commitment now forms a community of needs , with the result that the partner's income and assets are taken into account when assessing the need.

According to Section 7, Paragraphs 3 and 3a of SGB II, such a standing community exists if

“A person lives with the employable needy person in a common household in such a way that, after reasonable appreciation, the mutual will to bear responsibility for one another and to stand up for one another can be assumed.

A mutual will to take responsibility for one another and to stand up for one another is assumed when partners

  1. have lived together for more than a year,
  2. live with a common child,
  3. Look after children or relatives in the household or
  4. are authorized to dispose of the income or assets of the other. "

The legal presumption results in a reversal of the burden of proof . If there is only one of the four presumed facts for which the authority still bears the burden of proof, the authority no longer has to prove the existence of a community of responsibility and responsibility, but the beneficiary must refute the existence of such a community by demonstrating and proving that the Assumption does not correspond to the reality of life.

The most common fact from this list that occurs in practice is long-term cohabitation. However, in a judgment, the Detmold Social Court made high demands on the proof of this fact, which result in particular from the legal text in which it says to live together instead of living together and which correspond to the earlier judgment of the Federal Constitutional Court.

"A presumption for the existence of a community of responsibility and contribution ... requires ... in the sense of the norm more than just living together. It is necessary to live together in the form of a household and economic community as a demarcation from a mere flat-sharing community. The presumption only applies if there is a 'one pot' economy. "

- Detmold social court : file number S 11 AS 97/10

This jurisprudence in particular protects shared apartments.

July 9, 2008 - landmark judgment of the Federal Court of Justice

In a landmark judgment of July 9, 2008 - Az.XII ZR 179/05 (published inter alia in: BGHZ 177, 193; NJW 2008, 3277; MDR 2008, 1275; DNotZ 2009, 52; NZM 2008, 694; NJ 2008, 455 ; FamRZ 2008, 1822; WM 2008, 1801) - the Federal Court of Justice has strengthened the rights of unmarried people in unmarried communities. If, for example, a home was built together in the relationship that is only registered to one of the two partners, the other is now entitled to offset the services provided for the first time after separation.

"After the end of an illegitimate partnership, there are not only company law compensation claims, but also claims from unjust enrichment (§ 812) due to significant contributions by a partner with whom an asset of considerable economic importance (here: residential building) was created, the sole owner of which is the other partner Para. 1 sentence 2, 2nd alternative BGB) as well as according to the principles on the discontinuation of the business basis (abandonment of previous case law, see for example BGH judgments of October 6, 2003 - II ZR 63/02 - FamRZ 2004, 94 and from July 8, 1996 - II ZR 193/95 - NJW-RR 1996, 1473 f.). "

The Federal Court of Justice thus expressly abandoned its previous case law, according to which those affected would receive nothing in such a separation. Monetary maintenance, maintenance in kind, care maintenance, maintenance includes all services to secure the needs of a person. “Food” or “food” means, in today's legal language, it refers to financial support (cash support), while the term support also includes support in kind and care support. 

Geldunterhalt (Barunterhalt) ist die regelmäßige Zahlung eines Gesamtbudgets
Zum Naturalunterhalt gehören:
Unterkunft
Nahrungsmittel
Bekleidung
Unterricht und Erziehung
Freizeitgestaltung
Taschengeld

Maintenance claims of separated partners were regulated from 1976 to 2007 by the first law to reform the non-marital cohabitation law. In 2008, the law amending maintenance law comprehensively redefined the claims of separate non-marital partnerships, single single parents and children.

Austria

In Austrian social law, the income of all people living in the same apartment are offset against social benefits such as emergency assistance . Austria does not have a differentiation comparable to the situation in Germany.

Switzerland

In the document Social Assistance in Marriage-Like Communities , the situation in Switzerland is described, which also knows the term. The term cohabitation is also used there to describe a marriage-like community. The situation is very similar to that in Germany. One difference is the reversal of the burden of proof after five years of living together, after this time it is assumed in Switzerland that there is a "stable cohabitation". At the same time, the (presumed) will to form a “community of fate” is also decisive in Switzerland.

European comparison

In some European countries, illegitimate partnerships have more extensive contractual arrangements than in Germany, and the partnership is not only linked to obligations, but also to rights. In Germany - where until July 31, 2006 social law burdens could only arise from the marriage-like partnership of people of different sexes - there is always a discussion about whether further legal consequences should be attached to non-marital partnerships.

The proponents justify this mainly with legal problems that arise in connection with common children. The opponents fear that this would establish an alternative to marriage , which contradicts the constitutional mandate to protect marriage. As far as common children are concerned, in German law unmarried partnerships are now largely equated with married couples as a result of the case law of the Federal Constitutional Court ; the common upbringing of children whose one parent is not a partner in the unmarried cohabitation is still hampered by legal problems. Political initiatives to create basic legal rules for non-marital partnerships have largely failed so far. However, Section 7 (3) of the Social Security Code , second book ( SGB ​​II ) in the version that has been in effect since August 1, 2006, extends the concept of marriage-like communities to same-sex partnerships, as far as belonging to the community of needs of the employable needy is concerned.

United States

In United States law the cohabitation is referred to as common-law marriage .

Depending on the prevailing definition of the term marriage, consensual cohabitation can also be viewed as a special form of marriage: if birthrights, legitimacy or common parenthood are the decisive criterion, it is also treated as a marital relationship in some countries. This is especially true in countries with an Anglo-Saxon legal tradition (so-called common-law marriage ). In contrast to marriage, a consensual marriage can do without a publicly attested contract. It is based solely on private mutual declarations of intent by those involved, which can be canceled at any time. Because of this informal character, some of those affected also object to attempts to give non-marital partnerships a legal framework, on the grounds that the state and society should not influence personal relationships.

See also

literature

  • Detlef Burhoff, Volker Willemsen: Handbook of the illegitimate cohabitation. Münster 2009, ZAP Verlag, ISBN 978-3-89655-297-6 .

Web links

Individual evidence

  1. ↑ BVerfG, December 16, 1958 - 1 BvL 3/57; 1 BvL 4/57; 1 BvL 8/58 . OpinioIuris - The free law library. Retrieved March 22, 2019.
  2. ↑ a b c d e BVerfGE 87,234
  3. ↑ a b Landessozialgericht Sachsen-Anhalt, decision of April 22, 2005, Az. L 2 B 9/05 AS ER
  4. ^ Judgment of the Düsseldorf Social Court , S 35 SO 28/05 ER, February 16, 2005
  5. ^ Judgment of the Detmold Social Court , S 11 AS 97/10, April 13, 2012
  6. ^ Judgment of the BGH of July 9, 2008, Az. XII ZR 179/05
  7. ^ BGH judgment of July 9, 2008 at openJur
  8. ↑ Social welfare for cohabiting communities ( Memento of February 14, 2005 in the Internet Archive ) (PDF; 21 kB)