CHAPTER V The Law of Domestic Relations

Author:E. J. Cohn
Profession:Sir
Pages:154
 
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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

  1. 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.

  2. 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 This law was, however, superseded by Control Council Law No. 16, which constitutes an expurgated translation of the Nazi law of 1938.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.

  3. 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).

  4. 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.

  5. 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

  6. 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.

  7. 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 English court in a similar case.

    SECTION II - CELEBRATION OF MARRIAGE

  8. The topic summarised in this section is treated in sections 1-15 Control Council Law No. 16. Sections 1-3 deal wilh capacity to marry (referred to by the strange term ' nubility ' in the law), sections 4-10, with impediments to marriage. Attention is called especially to the fact that consanguinity and affinity are defined very differently from English law (section 4), to the impediment created by adultery (section 6), to that of the waiting period of a woman previously married, the purpose of which is to prevent what is generally called a perturbatio sanguinis (section 8) and to the certificates required in the cases referred to in sections 9 and 10. In accordance with the general technique of German law imperative requirements are expressed by the use of the words ' may not ', while requirements which are merely mandatory are expressed by the words ' shall not '.

  9. Of particular importance under present conditions in Germany is section 10 which requires all foreigners intending to contract a marriage in Germany to produce a certificate of ability to marry from their own national authorities.

    The purpose of this provision is to prevent the conclusion of a marriage which according to the rules of the German law of conflict of laws would be void. The German law of conflict of laws considers a marriage concluded by foreigners in Germany as void if it is void under the law of the nationality of either party for any reason other than on a mere point of form (see Introductory Law to the Civil Code, section 13). From this requirement-as from certain others-exemption may be granted by the Oberlandesgerichtspriisident.

    This has been utilised by Military Government to exercise control over the marriages of United Nations nationals in Germany Legal Div. Technical Instructions No. 23, pp. 21 ff.

  10. German law has for a number of decades adhered to the principle of compulsory secular celebration of marriages. Only a registrar can celebrate a marriage. A priest, no matter of what denomination, can never be a registrar.

    This principle, already embodied in the Civil Code of 1900, is reaffirmed in section 13 of Control Council Law No. 16. A priest celebrating a marriage, before the latter has been celebrated before a registrar, commits a criminal offence. The registrars are municipal officials. After its celebration the marriage is entered in the so-called family book of the place of celebration. Documents proving the marriage must be obtained from the registry office where the celebration took place. There is no central register of marriages. It is not unusual for Germans to celebrate a marriage in church, after it has been performed in a registry office. The ecclesiastical celebration is of no legal significance, except, of course, under the ecclesiastical law of the denomination to which the spouses belong. Certain marriages concluded between January 1, 1945 and August 1, 1948 in Germany or German-occupied territory before clergymen or other unauthorised persons may be rendered valid by being entered before December 31, 1950 into the register of the Registry Office at Hamburg, see Decree of the Central Legal Office of August 13, 1948 (VOBI BZ, p. 238).

    A marriage under the English Foreign Marriage Act is valid under Control Council Law No. 52, if concluded on or after 29th April, 1947, and if neither spouse is a German national. This law has inserted a new section 15a into Control Council Law No. 16. This new section permits a marriage, to be concluded between parties, neither of whom is a German national, before a person duly empowered by the Government of the country of which either party is a national. Such a marriage must be concluded according to the form prescribed by the law of that country. Arrangements are made which enable the German registrar of the district where such a marriage took place to record and file a certified copy of an entry of the marriage in the register kept by the foreign representative.

  11. According to section 79 of Control Council Law No. 16 all provisions of any carrying-out laws, ordinances or decrees or of any other legislation which are inconsistent with the present law are repealed by Law No. 16.

    It will be readily understood that the question which of the many ordinances enacted during the Nazi period and especially during the war are incompatible with Control Council Law No. 16 has caused a good many difficulties to the German courts. In the British Zone these difficult questions are now solved by the Decree of the Central Legal Office on the Carrying out of the Marriage Law of February 20, 1948 (VOBI BZ, p. 210), which contains a recodification of the entire subsidiary legislation relating to the Marriage Law. During the war it was possible for members of the Armed Forces and certain other persons on national duty to celebrate a ' marriage over a distance' (Ferntrauung, see for details Palandt, Commentary on section 17 of the Marriage Law note 3). Marriages thus celebrated in the past are valid, but no such marriages may be celebrated in the future.

    Under an unpublished decree of the Reichsminister of the Interior of June 15, 1943, it was even possible for a woman to marry a soldier who had fallen at the front post mortem (so-called Leichentrauungen), see on these marriages the decision of the District Court of Hildesheim, Monatsschrift fir...

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