SECTION XXI - Special Procedure In Matters Affecting Status

VerfasserE. J. Cohn and G. Meyer
Amt des AutorenSir
  1. A number of special rules apply to proceedings on the following matrimonial matters:(a) Divorce.

    (b) Nullity (see vol. 1, part 1, para. 487) and annulment (see vol. 1, part 1, para. 490) of marriage.

    (c) Restoration of Conjugal Rights.

    (d) Judicial declaration that a marriage is or is not legally in existence.

    Other suits, e.g. those where merely the financial consequences of a marriage are under dispute are not governed by these special rules and consequently do not constitute matrimonial disputes within the meaning of the ZPO. At the larger Landgerichte-only the Landgerichte have jurisdiction in matrimonial disputes-special chambers for matrimonial disputes exist.

  2. In cases of divorce and restoration of conjugal rights an attempt to conciliate the parties forms the first stage of the proceedings. (Section 608, ZPO.) In practice this is a matter of pure form and hardly taken seriously by anybody. The attempt is practically always unsuccessful. The Public Prosecutor may participate in all cases, attend all hearings and assist in the proceedings by producing evidence on facts or giving legal opinions (section 607, ZPO). This again is mere theory. Co-operation of the Public Prosecutor seldom occurs. The most important special rule is contained in section 622, ZPO according to which a court is absolutely unfettered by the motions of the parties in hearing evidence and considering facts. This means that in the field of matrimonial disputes the rule of Party Presentation (see section VI, para. 21 above) has always been replaced by that of judicial investigation. In consequence of this the code also prescribes that the court can at any time summon the parties themselves and examine them concerning the facts of the case (section 619, ZPO). Of special importance in matrimonial matters are interim orders by which the court may make provision for the separation of the parties during the course of proceedings, for the care of their children, their maintenance and the maintenance of the parties etc. (See section 627, ZPO.) 117. Proceedings relating to the Relationship between Parent and Child reached very great importance in the Nazi period because of the importance of a person's race for his status in life, but are, of course, of importance also after the end of the Nazi r6gime. Sections 640 to 643, ZPO provide that the Landgericht has exclusive jurisdiction and that the principle of Judicial 13112 F

    Inquisition applies. They are, however, excluded...

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