To regulate the various legal relationships within society, statutory provisions establish reciprocal rights and obligations for the parties to those relationships. Exercising those rights can be complicated by the particular circumstances of a case, which is why our law firm recommends turning to an experienced lawyer for help, who can be relied upon to find the most effective path to achieving your goals. Among the most frequent problems our clients encounter are those arising in the field of family law. For this reason, we would like to introduce you in somewhat greater detail to the current case law in this area.
For richer, for poorer — but not for shared debts
The most frequent question put to our law firm by clients who intend to marry, or who are already married couples, concerns the need to answer for a spouse's debts. This is a rather delicate question, since spouses do not wish to express distrust of one another, yet blindly relying on the other person's moral principles is also often quite risky. That is precisely why the wisest course is to consult a qualified lawyer in good time, so as to know for certain what to expect.
Under German law, one spouse is liable for the debts of the other only where they have consented to that liability. As a general rule, therefore, each spouse is liable only for their own debts. An exception to this rule concerns minor everyday transactions concluded by one spouse — buying food, clothing, household appliances, and the like (§ 1357 of the German Civil Code, Bürgerliches Gesetzbuch — BGB). In such cases, the debt may be recovered from both spouses. This right to conclude transactions in the sphere of household management (Schlüsselgewalt) does not, however, extend to the purchase of luxury items. In addition, spouses are jointly and severally liable as tenants toward a landlord where a tenancy agreement has been signed by both spouses, as well as under contracts for the supply of gas, electricity, and similar utilities.
Important on divorce
(§ 1357 of the German Civil Code, Bürgerliches Gesetzbuch).
However, where one spouse enters into a loan agreement to purchase a car or a piece of real estate, the other spouse will be jointly and severally liable only if they too signed that agreement, or acted as guarantor for its performance. By signing the agreement, a spouse thereby expressly declares their consent to act as a joint debtor. In that case, regardless of who owns the car or other asset in question, the creditor is entitled to claim the debt from either spouse, in whole or in part (§§ 427, 421 BGB).
Spousal maintenance
Under § 1569 BGB, after a divorce each spouse must, in principle, provide for their own material support independently. The law does, however, provide for certain exceptions in which one spouse is entitled to claim maintenance from the other. The most common examples of such exceptions are a maintenance claim arising from caring for a joint child until the child turns three (§ 1570 BGB), a maintenance claim arising from an inability to work due to physical or mental illness (§ 1572 BGB), and maintenance until the completion of training or education that was interrupted during the marriage (§ 1575 BGB), among others. Beyond these, a former spouse may also claim support if they cannot find suitable work and/or cannot achieve the standard of living they enjoyed during the marriage (§ 1573 BGB).
Current case law offers a vivid illustration of such a case. After 30 years of marriage, a husband decided, for personal reasons, to divorce his wife. The 50-year-old woman, who had given up her education at 17 upon marrying and never resumed it, having devoted all her time to raising the couple's children, was, after the divorce, unable to secure an adequate standard of living, since the lack of a qualification prevented her from finding suitable work. She therefore filed a claim seeking to recover maintenance from her former husband, who earned an average salary. The husband challenged the claim, arguing that his wife would not have obtained a qualification even had she never married. The court, however, found no grounds to conclude that she would not have completed her education. Moreover, the claimant had already studied for more than a year before the marriage, which, according to settled practice, supports the conclusion that she would have completed her studies and could have earned at least as much as her former husband. For this reason, and in light of the length of the marriage, the court ordered the defendant to pay his former wife maintenance in an amount covering the difference between their respective salaries, with no time limit.
Up to what point is property considered jointly acquired
Another example of how unforgiving the requirements of the law can be is the case of a couple who had been married for 29 years, had raised three children, but then decided to live apart. The divorce itself, however, was not filed for a long time thereafter. A year after the separation, the husband began living with a new partner, with whom he later won almost a million euros in a lottery draw. Nine years after the separation began, and seven years after the husband's lottery win, the wife finally decided to file for divorce, and, in the division of property, claimed half of her former husband's lottery winnings as well. The reason lies in § 1384 BGB, under which the date on which any increase in the value of each spouse's pre-marital and marital assets — subject to equalization of accrued gains upon divorce — ceases to be taken into account is the day the divorce petition is served on the other party, or the day the court hears the petition. The defendant sought to resist the claim, pointing to the length of time the spouses had lived apart before the divorce petition was filed, as well as to the excessiveness of the compensation sought. The German Federal Court of Justice (Bundesgerichtshof), however, held that these circumstances were irrelevant in this case, and that the former wife's claim was to be granted in full.
Wedding gifts: how they are divided at divorce
Traditional weddings are often celebrated lavishly, with relatives and friends taking part who naturally wish to please the newlyweds and present them with valuable gifts. Where a gift was intended specifically for one spouse, that property becomes that spouse's exclusive property.
Thus, under settled case law, jewelry given to the bride during the wedding celebration is her exclusive property — meaning only the bride may dispose of it. A former husband who, after the divorce, sold jewelry given to his bride at their wedding, was ordered by the court to reimburse his former wife the full value of the sold jewelry, as determined by an appropriate appraisal, notwithstanding that the jewelry had been given directly by his own relatives.
This article has presented only a few examples from the case law on family matters that our law firm regularly monitors. We would like to draw your attention to the fact that every case is assessed by the court individually, taking into account the specific circumstances involved, which is why we strongly recommend consulting an experienced lawyer well in advance, so as to have a reliable representative of your interests.
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