Maintenance (Germany)

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The maintenance law is in need that their own upkeep unable to support themselves, a right to grant maintenance . Spouses , divorced spouses, parents of legitimate and illegitimate children ( child maintenance ) and straight line relatives may be obliged to provide maintenance . In Germany , maintenance is regulated in the German Civil Code (BGB). Maintenance law was reorganized on January 1, 2008 by the law amending the law on maintenance . The maintenance guidelines issued by the individual higher regional courts , which may well differ in detail, must also be observed.

Child maintenance, parental maintenance, maintenance due to relatives (§§ 1601 to 1615 BGB)

Only relatives in a straight line ( parents - children - grandparents - grandchildren ) are dependent on each other. The maintenance of relatives includes the entire necessity of life including the costs of an appropriate professional training , § 1610 Abs. 2 BGB.

The most important part of the maintenance of relatives is child maintenance .

However, parental support is also becoming increasingly important . For children who are supposed to take care of their parents, a higher deductible and a lower maintenance obligation generally apply. According to the Federal Constitutional Court , the children's position in life and their own pension provision must not be permanently impaired by maintenance payments to their parents. (Questionable with grandparents' parts.)

In the case of grandparents who are responsible for their grandchildren, if the parent who is actually responsible for maintenance is not or not sufficiently productive, the strict requirements in the context of increased maintenance obligations do not apply. The deductible (personal needs of the person liable for maintenance) is significantly higher.

Maintenance as a result of a marriage

A distinction is made between the maintenance obligation between divorced spouses ( §§ 1569 ff. BGB) and between married spouses who have dissolved the marital partnership (separation maintenance , § 1361 BGB). The maintenance law of marriage applies accordingly to life partners . Sections 5 , 12 and 16 LPartG refer to the maintenance right in the German Civil Code.

Family support (§§ 1360 to 1360b BGB)

It is owed in intact families . It includes everything that is necessary according to the specific circumstances in order to meet the costs of the household and to meet the personal needs of the spouses and the living needs of the joint dependent children , as well as in certain cases the financing of court proceedings by means of an advance payment of legal costs in accordance with. Section 1360a Paragraph 4 BGB. Both spouses have to contribute to the family maintenance, whereby the part taking over the housekeeping usually fulfills his / her maintenance obligation (cf. § 1360 sentence 2 BGB). Family support also includes the right to pocket money for personal needs (approx. 5–7% of income).

Separation maintenance

If the spouses dissolved the marital partnership during the existence of a marriage, there is a maintenance claim according to § 1361 BGB (separation maintenance ). For the amount of the maintenance claim, the neediness of the entitled person, the ability of the obligated party and the forfeiture, what was said about post-marital maintenance applies. The separation maintenance is always based on the marital living conditions and can neither be limited in time nor reduced to a reasonable living requirement. In contrast to the post-marital maintenance claim, the person who ran the household is also not subject to any employment obligation in the year of separation .

Alimony of the divorced spouse

In principle, each spouse after divorce has the obligation to provide for their own maintenance ( § 1569 BGB). If he is unable to do so or if he cannot be expected to work, he is entitled to maintenance (neediness). This does not apply if the other spouse is not productive.

A distinction is made between the following types of post-marital maintenance:

  1. Care maintenance ( § 1570 BGB);
  2. Maintenance due to old age ( § 1571 BGB);
  3. Maintenance due to illness or infirmity ( § 1572 BGB);
  4. Maintenance due to unemployment ( Section 1573 (1) BGB);
  5. Top-up maintenance ( Section 1573 (2) BGB);
  6. Education maintenance ( § 1575 );
  7. Maintenance for reasons of equity ( § 1576 BGB).

In practice, the most important maintenance claims are those for looking after a child and supplementary maintenance.

The divorced spouse who is caring for and raising a child can demand childcare support at least three years after the child's birth. The duration of childcare support is extended if it is fair, especially with regard to the possibilities of childcare, taking into account the structure of childcare and gainful employment in the marriage or the duration of the marriage.

The judgment of the Federal Court of Justice of March 18, 2009 states:

"In the context of an equitable decision on an extension of childcare maintenance for child-related reasons according to Section 1570, Paragraph 1, Clauses 2 and 3 of the German Civil Code, the individual situation must always be examined first, whether and to what extent childcare is secured in another way or secured in child-friendly childcare facilities Because with the redesign of post-marital care maintenance in § 1570 BGB, the legislature has given up the priority of personal care for children from the age of three. "

Childcare maintenance is not limited to underage children. The divorced spouse can also demand maintenance support for caring for disabled children of legal age, provided that personal care of the child is necessary.

The additional maintenance compensates for disadvantages caused by the marriage. Is z. For example, if the wife no longer pursues gainful employment after the marriage, the disadvantage after divorce is offset by the fact that she is entitled to an increase in her post-marital income to the marital level. The amount is calculated using the difference method. The higher-earning divorced spouse does not have to pay half, but depending on the court 40% to 45%, mostly 3/7, of the difference to the lower-earning divorced spouse due to the employment bonus. The law amending the law on maintenance gave the family judge the opportunity to limit the supplementary maintenance or to reduce it to a reasonable maintenance if the dependent did not suffer any disadvantages caused by marriage, e.g. B. was employed during the marriage to the same extent as he would have been unmarried. On the other hand, the existence of marriage-related disadvantages can rule out a limitation of the maintenance. This means that it is still possible today to assess lifelong maintenance payments without consideration.

Maintenance claims can only be asserted from the month in which the person liable for maintenance was requested in writing to provide information about his income and to pay maintenance. It depends on the day on which the person liable for maintenance receives the corresponding letter.

History for the long term

Up to and including 2007, an age phase model was generally assumed: If during the marriage a spouse ceased to work in whole or in part because of caring for the children, the spouse caring for the children only has a child after a certain age To take up employment.

After a legal change in January 2008, this was interpreted differently in the literature and in case law. Some Senates expected full-time employment from the age of 4 if childcare facilities were available. Other Senates based themselves on an age phase model of the following kind: From the 4th year of life of a child up to elementary school, a minor activity can be expected. This is followed by part-time employment up to the age of 14. Full-time employment is then expected from the age of 14.

Therefore, in March 2009 the Federal Court of Justice pronounced the wording of the above judgment and also explicitly stated:

"Insofar as ... in the case law and literature on the version of § 1570 BGB that has been in effect since January 1, 2008, differing views are represented, which are based on the earlier age phase model and make an extension of the childcare maintenance dependent solely on the child's age, these are with regard to the unequivocal will of the legislature is not tenable. ... An age phase model which, when it comes to extending childcare allowances for child-related reasons, is based solely on the age of the child, does not meet these requirements. "

Maintenance amount (requirement)

The amount of maintenance is determined by the marital living conditions ( Section 1578 (1) BGB). The need is calculated from the previous conjugal total income, which each part receives in half ( principle of half- division ). In principle, all income (wages of a dependent employee, profit of a self-employed person, interest on capital, rent, BAföG, etc.) and pecuniary benefits (e.g. use of a condominium) must be taken into account. The asset base of the obliged entity is not included in the calculation. A post-marital increase in income for the obligated person benefits the beneficiary to the extent that the increase corresponds to a normal development (e.g. collectively agreed promotion through the passage of time after divorce). The standard shaped by marriage does not include the splitting advantage achieved as a result of a new marriage .

Calculation methods

With the addition method, the (adjusted) income from the marriage of both spouses is first added up. The sum is divided by two, since under German law everyone is entitled to half ( principle of half- division ). This half is then the specific needs of the respective spouse - i.e. the amount of money that is necessary to maintain the standard of living in the marriage. The maintenance due is finally obtained by deducting the existing income.

Since the judgment of the Federal Court of Justice on June 13, 2001, the (fictitious) value of housekeeping and child-rearing (differential or surrogation method) must also be included in the total marital income . The value is measured according to the income that the household and child-rearing part could have achieved by taking up gainful employment. If a housewife takes up gainful employment after the divorce, the income generated is seen as a surrogate for her previous service and welfare benefits within the family.

Adjusted net income

Of the income of each divorced spouse, the public-law charges (taxes, contributions), travel costs to the workplace (flat rate of 5% of net income or specific calculation possible) and other business expenses, interest on a marriage-related loan and reasonable expenses for the Services of general interest deductible.

Other maintenance obligations vis-à-vis those with priority entitlement must also be deducted. This particularly includes child support.

Employment bonus

An amount can be deducted from the adjusted net income, which is intended to offer the working divorced spouse an incentive to continue working compared to the non-working person. If both former spouses work, both can deduct the employment bonus from their adjusted net income. According to the South German guidelines, the employment bonus is 10% of the adjusted net income.

Neediness of the entitled person

Note: The concept of necessary subsistence in social law is not the same as the concept of subsistence under civil law. See in particular unemployment benefit II , social assistance (Germany) , basic income .

Those who cannot support themselves or who cannot reasonably be expected to support themselves are in need . Therefore, any personal income earned by the beneficiary must be deducted from the amount of maintenance. The amount of maintenance is to be reduced by the adjusted net income minus the workforce bonus of the beneficiary.

Performance of the obligated party and deficiency

The obligated party is subject to an obligation to gain employment in order to maintain or establish its performance. If he violates the obligation to work, the family court can use the income that the person obliged to provide maintenance would have achieved if his obligation to work had been properly fulfilled to calculate the maintenance requirement. This enables the dependent to attack the debtor's stock of assets.

After deducting the maintenance obligations, the obligated party must at least have a deductible to cover their own needs .

If not every maintenance claim can be corrected in full from the income of the beneficiary (deficiency), the repayment is made in accordance with § 1609 BGB. Since 2008, maintenance claims have to be fulfilled in the following order: First priority are the claims of unmarried minors and children up to the age of 21 who live with their parents and are in school. Secondary maintenance claims of a parent for the care of a child (care maintenance according to § 1570 BGB or § 1615l BGB) are to be paid off , regardless of whether the obligated person was married to the entitled person or not. Third is the maintenance claim of a former spouse of the obligated party.

Until the change that occurred on January 1, 2008, the decisive factor was whether the caring parent had previously been married to the other, and the claims had to be settled in a different order. The change in the law has put legitimate and illegitimate parents and children on an equal footing and strengthened the position of children.

Elimination, limitation and reduction

The maintenance claim does not apply if the person entitled marries a third party ( § 1586 BGB).

The law amending maintenance law created the possibility of limiting the claim to supplementary maintenance in accordance with Section 1578b (2) of the German Civil Code. Before this, the amount of maintenance to be granted can be gradually reduced from the level of the marital living conditions to a reasonable need. In the possibility of a reduction and a time limit, the basic idea of ​​the maintenance law is expressed that it is everyone's responsibility to first of all ensure their own maintenance. The supplementary maintenance, which is basically based on the marital living conditions, is intended to compensate for marriage-related disadvantages suffered by a spouse. If both spouses always worked during the marriage, regardless of whether or not there were children to look after, and if the gainful employment during the marriage was the same as before the marriage, then the marriage did not result in any disadvantages, even if one spouse earned less. He would earn less even if he hadn't married at all. As a result of the reform, by reducing and limiting the supplementary maintenance, the family court now has the option of treating the entitled spouse with the maintenance to be paid after the divorce no longer as if they were not divorced, but rather as if they were not married would have.

In November 2009, the BGH confirmed the possibility of reducing maintenance if you marry again. Not only the maintenance needs of existing children but also that of the new spouse should be taken into account. The maintenance of the new spouse is "to be determined for the purpose of equal treatment as if the new marriage were also divorced".

forfeiture

All types of maintenance as a result of a marriage can be forfeited according to § 1579 BGB.

Maintenance is forfeited in particular if there was only a short-term marriage, usually less than two years.

A forfeiture also occurs if the person entitled to maintenance lives with a third party in an established civil partnership. A beneficiary who enters into an illegitimate partnership should not be in a better position than in the case of remarriage.

Forfeiture also occurs if the person entitled commits a serious crime against the person obliged or one of their relatives (e.g. children) or if the person entitled has willfully caused his or her need.

Alimony fraud

Section 263 makes fraud a criminal offense, which also includes maintenance fraud. If the act is deceptive and the service provider has not owed the recipient any money, this is fraud.

Waiver

Due to the new regulation in § 1585c BGB, the agreement of a waiver of post-marital maintenance - if it is to be concluded before the divorce becomes final - must be notarized. A waiver in which the interests of children in need of care are impaired or the need for social assistance is brought about is ineffective.

Separation maintenance cannot be waived in the future, not even through a notarial contract . Separation maintenance (backlog) that has already been incurred can be dispensed with.

Support for unmarried mothers or fathers

The pregnant mother and the parent caring for a illegitimate child are owed maintenance if they are unable to pursue gainful employment because of the pregnancy or the care and upbringing of the child : This is to be compensated for by the maintenance obligation ( Section 1615l BGB).

In 2005, the BGH ruled that the parent responsible for maintenance is entitled to a deductible of between € 840 and € 1,000 and proposed an amount of € 920. The deductible is the same regardless of whether the parents are divorced or were never married to each other.

After the almost unanimous position since 2008 § 1570 and § 1615l BGB care maintenance or education maintenance grant for the first three years at least, after an individual examination is necessary. The minimum requirement of the parent bringing up the child has been € 770 since July 1, 2005.

The person liable for maintenance can claim a basic allowance (2010: € 8,004) as an extraordinary burden in his tax return . This has a tax-reducing effect on the part that the person receiving the maintenance does not use himself.

History to the height

Before June 30, 2005, the deductible for illegitimate dependents was € 1,000, compared with divorced dependents € 840, so that in the event of a deficiency (i.e. the person liable for maintenance cannot pay the entire maintenance), up to € 160 less maintenance. In practice, in the worst case, the divorced service provider is entitled to € 840 per month, whereby the amount of the income is insignificant; in the case of non-marital service providers, this is € 160 more.

History for the long term

Until 2007, the case law was unanimous on the assumption that there is no obligation for the caring parent until the age of a legitimate child of eight years or until the end of primary school. In contrast, the entitlement of a parent who looks after a child out of wedlock and therefore does not pursue gainful employment, standardized in Section 1615l of the German Civil Code, was much weaker. The obligation of the other parent to provide maintenance to the caring parent ended, as a rule, no later than three years after the child was born, in accordance with Section 1615l Paragraph 2 Clause 3 BGB.

Because of the indirect disadvantage associated with illegitimate children, this has raised constitutional concerns. Before the Federal Constitutional Court , therefore, is facing by Art. 6 , para. 5 Basic Law illegitimate children offered equal treatment (the caring parent of divorce gets at least until the age of eight, the youngest child support) not exceeding 1 BvL 9/04 one from Hamm Court with Decision of August 16, 2004 initiated norms control proceedings were pending, and before the Federal Court of Justice and the subordination of this maintenance ordered in § 1615l BGB in two revision proceedings on December 11, 2004 and December 15, 2004 were negotiated orally.

In February 2007, the Federal Constitutional Court declared the previously valid regulation on the different duration of maintenance claims under Article 6 (5) of the Basic Law to be unconstitutional.

On October 24, 2007, the top of the CDU / CSU agreed on a compromise which essentially leaves § 1570 and § 1615l BGB identical. Only in § 1570 BGB has a clause been inserted through paragraph 2 to compensate for disadvantages caused by marriage and upbringing. This compromise was accepted at the coalition meeting on November 4, 2007, recommended unchanged by the Legal Committee of the Bundestag on November 7, 2007, and passed unchanged on November 9, 2007 by the plenum of the Bundestag. After the approval of the Federal Council and the Federal President, the law amending the law on maintenance was published in the Federal Law Gazette on December 28, 2007 and is therefore legally valid.

Thus, a constitutional regulation within the framework of the maintenance law reform came into force on January 1, 2008. In the interests of the children, the caring parents will be treated equally financially in future, regardless of the legal status of the relationship between mother and father.

Maintenance by type of grant

The legal basis is § 1612 BGB.

Cash maintenance

Cash maintenance is the payment of a sum of money. This form of maintenance is the most common case of a maintenance obligation.

Care maintenance

Childcare maintenance is provided for underage children through their care and upbringing and is in principle equal to cash maintenance. The caring parent does not have to pay any cash maintenance to the underage child. This is standardized in Section 1606, Paragraph 3, Sentence 2 of the German Civil Code.

Support in kind

Maintenance in kind is to be provided by covering the needs of a person entitled to maintenance through payments in kind; for example by providing an apartment, paying heating costs to the landlord, paying the telephone bill, buying clothes, caring for a child who is included in long-term care insurance .

Deductible

The higher regional courts grant the person liable for maintenance different deductibles depending on the relationship to the person requiring maintenance.

Procedural law

Maintenance disputes are a matter for the family courts , these are departments of the local courts . Appeal courts are the locally competent higher regional courts.

It is based on guidelines and tables, which however have no legal force, but only show how maintenance should be calculated in their opinion. As a rule, however, the family courts of the respective judicial district (= OLG districts) are based on this. The best known is the Düsseldorf table , which regulates the details of the child support entitlement , the spousal support entitlement and the parental support .

Also known are the South German guidelines of the higher regional courts in Bamberg, Karlsruhe, Munich, Nuremberg, Stuttgart and Zweibrücken.

Sanctions for breach of maintenance obligation

Anyone who does not meet their maintenance obligation can be punished for breach of maintenance obligation under German law in accordance with Section 170 of the Criminal Code (StGB) . A punishment is only possible, however, if willfully, despite the ability to work, neither maintenance is paid nor provided in kind, i.e. through the provision of accommodation, supervision and care, or work is given up or refused.

A maintenance title can be enforced by means of foreclosure . The basis for such a title can be, for example, a youth welfare office document, a notarized maintenance obligation, a court judgment or order or a lawyer settlement with a declaration of enforceability.

further reading

  • Civil Code (BGB) , mainly §§ 1360, 1361, 1569–1586, 1601–1615
  • Volker Lipp (ed.): Reform of the maintenance law. 5th Göttingen workshop on family law . (= Göttingen legal writings; Vol. 3). Universitäts-Verlag, Göttingen 2007, ISBN 978-3-938616-72-7 ( full text as PDF )
  • Martin Menne, Birgit Grundmann (ed.): The new maintenance law. Introduction, legislative process, materials with sample calculations, examples and synopsis . Bundesanzeiger-Verlag, Cologne 2008, ISBN 978-3-89817-492-3
  • Johannes Münder: Family Law . 5th edition. Luchterhand Verlag, Munich 2005, ISBN 3-472-06151-0 (there: 4th part, chapters 7-9)
  • Niepmann, Birgit / Schwamb, Werner: The development of maintenance law since the beginning of 2013 (previous article: "... since mid-2012", NJW 2013, 662), NJW 2013, 2719

See also

Web links

Individual evidence

  1. ↑ zeit.de (2007): Compromise on the maintenance law: Union wants to force divorced mothers to work earlier
  2. ↑ Financial Times Deutschland (ftd.de): The way to maintenance reform is free ( Memento from December 7, 2007 in the Internet Archive )
  3. ↑ a b BGH, judgment of March 18, 2009 , Az. XII ZR 74/08, full text.
  4. ^ BGH, March 17, 2010, AZ XII ZR 204/08
  5. ↑ BGH, judgment of June 13, 2001 , Az.VII ZR 343/99, full text.
  6. ↑ BGH, judgment of November 18, 2009 , Az. XII ZR 65/09, full text.
  7. ↑ Pauling, Dieter: Competition between two spouses after rejection of the three-way method , NJW 2012, 194.
  8. ↑ Rolf Kofler: The forfeiture of maintenance claims , NJW 2011, 2470.
  9. ↑ DER SPIEGEL 42/2004, p. 52 f.
  10. ↑ BVerfG, decision of February 28, 2007 ( memento of June 6, 2007 in the Internet Archive ), Az. 1 BvL 9/04, full text; Different duration of the maintenance claims for the care of legitimate and illegitimate children unconstitutional.
  11. ↑ Maintenance law: “Children first” ( Memento from March 5, 2016 in the Internet Archive ), FAZ on November 5, 2007