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Is it ‘grossly unfair’ if a husband has to pay maintenance to his separated wife who has a close relationship with a homosexual man? (Judgment of the Federal Court of Justice of 20 March 2002)

Published online by Cambridge University Press:  06 March 2019

Kirsten Scheiwe

Extract

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On 20 March 2002, the XIIth Senate of the Bundesgerichtshof (BGH - Federal Court of Justice), the highest appeal court in civil law matters, was called to decide a case in which a separated husband had made an application to change a periodical maintenance payment order, arguing mainly that his wife no longer living with him had a close relationship with another man and that it was therefore an undue hardship to him, in the sense of para. 1597 no. 7 Bürgerliches Gesetzbuch (BGB - German Civil Code), to continue periodical maintenance payments at all. The separated wife argued that she did not cohabit with the man and had no intimate sexual relationship with him, since he was homosexual, that therefore no marriage-like relationship existed and maintenance payments should continue unchanged, since this obligation was no undue hardship towards the obliged spouse. The Federal Court of Justice judged in the last instance that the decision of the lower court, which had reduced the maintenance obligation, was correct, since the facts showed that a marriage-like relationship between the separated wife and her close friend existed; whether or not they had intimate sexual relations did not matter.

Type
Research Article
Information
German Law Journal , Volume 3 , Issue 9: Special issue - The War on Terror - One Year On , September 2002 , E4
Copyright
Copyright © 2002 by German Law Journal GbR 

References

Bundesgerichtshof (BGH - Federal Supreme Court), XIIth Senate, Judgment of 20 March 2002, case XII ZR 159/00, Zeitschrift für das gesamte Familienrecht 12/2002, pp. 810–812; for a short summary see the press release of the Court (http://www.bundesgerichtshof.de/PressemitteilungenBGH/PM2002/PM_0312_2002.htm).Google Scholar
Most case law and jurisdiction argue that, since these benefits are granted voluntarily, they are not intended to ease the maintenance burden of the support debtor and cannot be taken into account to decrease the need of the recipient. Others are of the opinion that all benefits granted by a third person should always be taken into account, if they reduce the need for support – see Gernhuber/Coester-Waltjen, Lehrbuch des Familienrechts, 4th edition, Munich: Beck, 1994, § 21 II 5, or Staudinger/Kappe, Kommentar zum Bürgerlichen Gesetzbuch, Viertes Buch Familienrecht, revised edition 2000, Berlin: De Gruyter, § 1602, note 49 f. This seems to be the most simple and convincing approach, since in maintenance law the intention of a third person who regularly grants some benefit (in cash or kind or as a service) towards the needy person should not be of central importance. This would help to overcome some contradictions in case law (sometimes the intention of the third party matters, but sometimes it is ignored in case-law (Kalthoener/Büttner, Die Rechtsprechung zur Höhe des Unterhalts, 6th ed., München: Beck, note 528, give two examples where the intention of the third party is ignored, but no reason is given by the court why they do it). However, the Federal Supreme Court and most of the jurisprudence take the position that a voluntarily granted benefit of a third party is, as a rule, intended only to benefit the recipient and not to relieve the person obliged to pay maintenance (see, for instance, the Federal Supreme Court's decisions, Zeitschrift für das gesamte Familienrecht 1993, 417; 1995, 537; 2000, 153). This position imposes difficulties in those cases where a separated or divorced spouse, entitled to maintenance, cohabits with a new partner. In these cases, the Federal Supreme Court solves the problem by interpreting the support of the third party as a sort of a ‘hidden wage’ received by the person entitled to maintenance, which reduces the claim. Another way of settling these cases is through the application of the general equity clause of para. 1579 no. 7 CC explained above. However, the use of para. 1579 no. 7 CC does not seem to be so appropriate in my view, since the fact of cohabitation or having a new partnership is not of the same nature as the other forms of behaviour mentioned in para. 1579 no. 1 – 6 CC.Google Scholar
Decision of the Federal Supreme Court of 21 December 1988, Neue Juristische Wochenschrift 1989, 1083.Google Scholar
Judgment of the Federal Supreme Court of 14 December 1994, Zeitschrift für das gesamte Familienrecht 1995, 344.Google Scholar
Ibid., p. 345.Google Scholar
See Miller and Röben in GLJ vol. 3 no. 8, 1 August 2002 for a discussion of the decision of 17 July 2002 (case 1 BvF 1/01) of the Federal Supreme Court which declared that the statute was in conformity with the German Basic Law.Google Scholar
It had already been criticised as inconsistent by Johansen/Henrich/Büttner, Eherecht, Scheidung, Trennung, Folgen, 3rd ed., 1998, § 1579 note 38, and Kalthoener/Büttner, Die Rechtsprechung zur Höhe des Unterhalts, 6th ed., München: Beck, note 1055-1148.Google Scholar
Judgment of the Bundesverfassungsgericht (BVerfG - Federal Constitutional Court) of 17 November 1992, Bundesverfassungsgerichtsentscheidungen (BVerfGE) Vol. 87, p. 234. According to this case, a relationship similar to marriage presupposes a community of joint responsibility and mutual support and is characterised by personal ties, which lead to reciprocal support. The partners must be of different sex.Google Scholar
Judgement of the First Senate of the Federal Constitutional Court of 17. Juli 2002 (Case 1 BvF 1/01 and 1 BvF 2/01), http://www.bverfg.de.Google Scholar
This assumption was made explicitly by a former decision in BVerfGE Vol. 10, p. 59, 66; although the necessity to be of different sex was never explicitly stated in positive law, it was seen as a 'Wesensmerkmal', a natural requirement.Google Scholar
Judgment of the First Senate of the Federal Constitutional Court of 17. Juli 2002 (Case 1 BvF 1/01 and 1 BvF 2/01), note 103.Google Scholar
Ibid., note 96.Google Scholar