Power of keys
The power of keys as a family law term describes the right of spouses and registered partners to carry out legal transactions that contribute to the cover of livelihood, also with effect for or against the other spouse or registered partner. This means that the creditor of a sum of money can also claim it from the other spouse or registered partner. It regulates German civil law in § 1357 BGB , Austrian civil law in § 96 ABGB for spouses and in § 10 EPG for registered partners .
Historically, the power of keys goes back to antiquity . In the Middle Ages , married women wore a keychain as a visible sign of their rights. It was especially meaningful for wives, as they stood outside of the power of keys for mandatory legal transactions under the tutelage of their husbands.
In the broadest sense, the power of keys denotes a restricted, transferable power of disposal .
German family law
According to Section 1357 (1) of the German Civil Code (BGB), each spouse is entitled to do business to adequately cover the family's needs with effect for the other spouse. Both spouses are entitled and obliged through such transactions, unless the circumstances indicate otherwise.
The following five prerequisites must be met for the power of the keys to be present:
- A valid marriage must exist when the contract is concluded. However, the contractual partner does not need to know anything about this.
- There must be a business to adequately cover the necessities of life . Examples: food, clothing, household appliances, etc. Not covered by Section 1357 BGB are transactions that fundamentally determine or change the living conditions of the family and their members, i.e. where the spouses can be expected to agree with each other before the contract is concluded. A contract that a spouse concludes without the required approval of the other spouse is therefore only effective in accordance with Section 1366 (1) BGB if the latter approves it.
- The business must be designed to meet the needs of the individually affected family . The coverage of the family's needs is defined as the living needs of the individually considered spouse and the joint dependent children.
- The coverage of needs must be adequate , i.e. it must be within the framework of the economic circumstances and lifestyle of this family. It is appropriate to cover needs that correspond in type and scope to the average consumption habits of families in a comparable social situation. If a family lives more expensively than usual, the actual life plan should be considered appropriate (BGH FamRZ 1985, 576, 578) . According to the Federal Court of Justice , what is decisive is the lifestyle that “emerges”. It should also depend on whether the other spouse was in agreement with the respective business and whether this fact has emerged.
- There must be no grounds for exclusion:
- The spouses may not live separately at the time the contract is concluded , Section 1357 III BGB.
- Joint liability does not apply if the other spouse has registered a restriction on the power of keys or its exclusion in the property law register. Otherwise with positive knowledge of the contract partner.
- There must be no “other circumstances” (see the law), for example express sole liability or clearly intended sole liability.
literature
- W. Brauneder: Schlüsselgewalt, eherechtlich , in: Handwortbuch zur Rechtsgeschichte, Vol. 4, Berlin 1990, Sp. 1446–1450.
