CHAPTER V The Law of Domestic Relations

Extract

---

CHAPTER V The Law of Domestic Relations

GENERAL REMARKS

SECTION I - PROMISE TO MARRY

SECTION II - CELEBRATION OF MARRIAGE

SECTION III - NULLITY OF MARRIAGE

SECTION IV - ANNULMENT OF MARRIAGE

SECTION V - DIVORCE

SECTION VI - LEGAL CONSEQUENCES OF DIVORCE

SECTION VII - RELATION OF HUSBAND AND WIFE IN GENERAL

SECTION VIII - THE MATRIMONIAL RIGIME

SECTION IX - RELATIONSHIP, LEGITIMACY AND MAINTENANCE

SECTION X - PARENT AND CHILD

SECTION XI - ILLEGITIMATE CHILDREN AND CHILDREN OF VOID AND VOIDABLE MARRIAGES

SECTION XII - ADOPTION

SECTION XIII - GUARDIAN AND WARD

SECTION XIV - PROTECTIVE SUPERVISION AND SUPERVISED EDUCATION

SECTION XV - GUARDIANSHIP IN THE CASE OF ADULT PERSONS AND CURATORSHIP

SECTION XVI - THE ACTION FOR MITIGATION OF HARDSHIP

GENERAL REMARKS

476. The fourth Book of the Civil Code contains the entire law of domestic relations, i.e. not only the law relating to husband and wife, to divorce, nullity and voidability of marriages, but also the law relating to guardianship, including guardianship over persons other than minors.

477. Very important parts of the fourth Book became obsolete in 1938 when a new Nazi-inspired marriage law came into force dealing with the celebration of marriages and their nullity, voidability and divorce. This law was, however, superseded by Control Council Law No. 16, which constitutes an expurgated translation of the Nazi law of 1938. The expurgation has affected some of the most crucial rules of the 1938 law. In some cases the law has been altered by the omission of a few words only, as e.g. in Control Council Law No. 16, section 19 as compared to section 23 of the Marriage Law of 1938.

478. A considerable number of carrying-out decrees and other subsidiary legislation accompanied the Marriage Law of 1938. This subsidiary legislation is not completely abrogated by Control Council Law No. 16, but only to the extent to which it is inconsistent with Control Council Law No. 16 (see section 79). This rule sometimes resulted in different problems of interpretation. These have been eliminated in the British Zone by the Ordinance of the Central Legal Office of July 12, 1948 (VOBI J3Z p. 210 and 247).

479. The rules of the fourth book are supplemented by a number of other subsidiary laws, some of which were already enacted during the period of the Weimar Republic. These will be referred to below in connection with the topics to which they refer.

480. The official version of Control Council Law No. 16 is not the German text, but the English, French and Russian text. The German text may, however, presumably be used for the purpose of interpreting the nonGerman versions and in general be treated as being of greater importance than the German translations provided on other occasions, because this text is very largely identical with the pre-1946 law. The summary of the

law relating to marriage which is given below is somewhat shorter than that of other parts of German law in view of the fact that the text of the Marriage Law is easily accessible in the English language (see Control Council Gazette No. 4 and Military Government Gazette No. 7).

SECTION I - PROMISE TO MARRY

481. Actions for breach of promise to marry are infrequent in German courts and never attract any public attention. This is due to the fact that the Civil Code (section 1298) provides that compensation in the case of non-fulfilment of a promise to marry is in general confined to the damage caused by the actual expenses incurred in expectation of the marriage. It is therefore necessary to prove that the expectation induced the bride or her parents or other third parties to take active steps which have adversely affected her property. Even this compensation cannot be demanded if there is an important reason justifying the breach of promise. The important reason need not be due to the person, circumstances or fault of the other party. On the other hand if the other party has committed any fault which constitutes an important reason for the withdrawal from the promise to marry, the party at fault must himself or herself compensate the other party, section 1299.

482. Only in one case may compensation be demanded for damage which is not damage to property: if the woman who has received the promise is of unblemished character and has permitted the other party to have sexual intercourse with her, she may claim an equitable compensation in money for the loss of her virginity, see section 1300. Amounts awarded in such cases are far smaller than those which would as a rule be awarded by an Eng...

See the full content of this document

---