What is it like to date a polygamist?

subjects

I. Introduction

The draft of a law to combat plural marriage provides for another amendment to Art. 13 EGBGB, which should now be worded as follows in its Paragraph 4 [1]:

"If both spouses have their habitual residence in Germany, a marriage concluded under foreign law must be annulled under German law if a marriage or civil partnership already existed between one of the spouses and a third person at the time of the marriage."

In addition, Art. 13 Para. 4 EGBGB-E is to be included in § 1310 Para. 1 S. 3 BGB, so that the registrar must refuse to cooperate if a repeal according to Art. 13 Para .

The Deutsche Juristinnenbund e.V. (djb) considers the draft to be (legally) questionable and not expedient in view of the concerns of the women concerned for the following reasons. It is not surprising that the draft has so far received harsh criticism in German legal literature without exception. [2]

It is true that the draft law states that polygamy is “open to the world” equal rights interpreted basic values ​​of our legal system [contradicts] "[3]. There is also no doubt that the Monogamy structural characteristic of the constitutional concept of marriage in Art. 6 I GG and Art. 9 GRC. [4] However, by constitution it also exists no duty of defense against polygamous marriages abroad.[5]

First of all, it is important to note that a plural marriage can currently not be legally concluded in Germany [6] and that in the case of a marriage abroad, as soon as one of the married people is German, Article 13 (1) EGBGB § 1306 BGB applies and the marriage can be annulled under German law.

According to current law, the Recognition of one abroad to only effectively concluded plural marriage under foreign matrimonial law. According to the prevailing opinion, this is the case ordre public- Basically does not contradict the reservation of Art. 6 EGBGB. [7] For reasons of public order, the pursuit of certain rights arising from marriage may be blocked, such as the right to establish a marital partnership. [8] However, plural marriages concluded by German nationals abroad are not recognized. [9]

Despite the gender-neutral formulation of the draft law, the djb assumes that in fact only polygynous marriages (i.e. a man with two or more wives) are affected. The reason for the draft law expressly puts the intended regulation in the context of the “refugee influx” and speaks in several places [10] solely of the “wife” and nowhere of the husband.

The following explanations therefore speak of "wives", as far as the spouses who are not reuniting are meant.

II. Worsening of women in polygamous marriages

It should be noted that the planned Art. 13 Para. 4 EGBGB-E leads to a significant deterioration in the situation of wives in polygamous marriages. [11]

1. Removal of protection in marriage

The draft law does not deal with an essential aspect of marriage, namely its protective function. Numerous regulations in German family law, in particular the regulations for Family and separation maintenance, currently also apply to foreign plural marriages if the dependent has their habitual residence in Germany (Art. 3 Para. 1 Hague Maintenance Protocol). However, annulment of the marriage - as provided for in the draft law - would undermine this protection.

2. Removal of protection after marriage

In addition, wives in a plural marriage would also be deprived of post-marital protection:

a. Consequences of divorce

A plural marriage effectively concluded abroad and under foreign law can be in Germany divorced are and generally draws the usual consequences of divorce (Maintenance obligation, pension compensation, usually gain compensation) after himself. [12]

In contrast, the abolition of the polygamous marriage would be that of Section 1318 of the German Civil Codereduced consequences of divorce trigger. The consequences of § 1318 BGB do not do justice to the interests of the second wife and children. To emphasize only a few aspects: § 1318 Abs. 2 S. 1 Nr. 1 BGB provides for the applicability of §§ 1569 ff. BGB only if the second wife “did not know that the marriage could be annulled at the time of marriage”. Regardless of this, care maintenance is only owed according to § 1570 BGB if “a refusal of maintenance would be grossly unreasonable with regard to the interests of the child”, § 1318 Abs. 2 S. 2 BGB. In the end, gains can only be demanded insofar as this is not “grossly unfair with regard to the interests of the third person”, Section 1318 (3) BGB. To make matters worse, there is no guarantee that the restricted consequences of divorce under Section 1318 of the German Civil Code (BGB) will apply in terms of conflict of laws. Because property law and maintenance are linked separately and do not have to judge each other according to German law if the repeal was subject to German law. If foreign law applies to property law and maintenance (according to EuGüVO and Hague Maintenance Protocol), there is no guarantee that this will provide for the consequences of divorce similar to § 1318 BGB even after the polygamous marriage is annulled. [13]

b. Spousal inheritance law

In addition, the affected wife (s) would give her (spouse)Inheritance law to lose. If the polygamous marriage is ended not by divorce but by death, the surviving spouses can be both or all of the legal heirs of the deceased reuniting spouse (and would have to divide the inheritance among themselves) if the relevant inheritance statute provides for such a right of inheritance for the spouse. [ 14]

Because of the basic connection of Art. 21 EuErbVO to the habitual residence of the testator, German inheritance law should typically apply in the cases covered by the draft law, so that the surviving spouses according to Section 1931 of the German Civil Code (possibly in conjunction with Section 1371, Paragraph 1 of the German Civil Code, who is to be qualified under inheritance law [15]) are appointed as legal heirs.

3. Removal of the self-determined decision of the women concerned

The schematic annulment of the second marriage is the wrong way to guarantee the protection of the women concerned. The initiative is being taken out of the hands of women. For wives of a plural marriage with habitual residence in Germany, who do not want a plural marriage, it would be possible and clearly more adequate at any time, to apply for a divorce yourself. Art. 3 lit. a SpStr. 1 Brussels IIa-VO establishes the international jurisdiction of German courts based on the habitual residence of the spouses; Art. 8 letter a Rome III-VO provides for the applicability of German divorce law as the law of common habitual residence for those affected.

In contrast, the power of the competent authority associated with the intended amendment to the law to apply for annulment of the marriage against the will of the spouses [16] represents an unjustified tutelage of the affected wife (s). [17]

4. Opening of the possibility of annulment for the husband

By ordering the application of the German right of annulment, the draft also opens up the possibility of annulment for the husband. The entitlement to apply arises from Section 1316 (1) sentence 1 no. 1 BGB (“each spouse”). It is true that the husband may be prevented from repeal by the objection of illegal behavior. The precise requirements of this objection of abuse of law are, however, controversial and problematic [18]; it in no way necessarily leads to the exclusion of the right of annulment. As a consequence, this means that the husband would be able to break free from the marriage with the second (or further) wife without observing the separation period (§§ 1565, 1567 BGB) and thus trigger the only reduced consequences of the divorce under § 1318 BGB .

III. Distorted goal setting

1. Objectives legal clarity and legal certainty

The motivation of the authors of the draft is, as with the law to combat child marriages of July 17, 2017 [19], based (again) on the “influx of refugees” [20]: “After multiple marriages were recorded in Germany in the course of the influx of refugees are, the lack of legal regulation and the associated uncertainty is increasingly perceived as unsatisfactory ”[21]. “The aim is therefore to create legal clarity and certainty in dealing with plural marriages” [22].

As far as the draft is a "lack of legal regulation“Objected, is to be contradicted. The situation of polygamous marriages abroad is by no means unregulated (cf. Art. 13 Para. 1 EGBGB). There is no specific restrictive legislation for polygamous marriages abroad, but the general one applies ordre public- Reservation of Art. 6 EGBGB. In view of the presumably very small number of people affected [23], a specific regulation in the EGBGB is inadequate and the solution to the problem is via the ordre public- Reservation of Art. 6 EGBGB is preferable. [24]

It is rightly pointed out in the literature that the "factual polygamy", Ie the coexistence of marriage and non-formalized cohabitation or several non-formalized cohabitation, is the bigger problem. [25] The draft does not deal with that. It is even to be feared that the ex officio annulment of polygamous marriages will lead to one Increase in de facto polygamous relationships in which there are no legal safeguards between the partners. [26]

The draft further criticizes that the ordre-public-Reservation [of Art. 6 EGBGB] in the relevant case of plural marriage applied inconsistently will. [27] To put it so generally, we cannot agree to this. Because the ordre public- According to the prevailing opinion, the reservation of Art. 6 EGBGB does not stand in the way of polygamous plural marriages, which are effectively concluded according to foreign marriage law alone. [28] In this respect, there is by no means a lack of legal clarity and legal certainty. [29]

2. Goal equality

The draft expressly does not claim to want to protect the affected wives. Nonetheless, he mentions them in the introduction Gender equality as the principle concerned. [30]

The draft releases the affected second (and other) wives from the marriage that is contrary to equality and sends the signal that plural marriages are not accepted in Germany, but it releases them into a significantly more disadvantageous situation with significantly reduced legal protection (see above). Since the draft de facto only covers polygynous marriages (see above), it disadvantages women in particular. Conversely, it materially favors the husbands of polygynous marriages (if and to the extent that in these marriages the husband earns the main income). You are completely or partially spared the loss of assets and income due to the consequences of marriage and divorce. At the same time, it can be assumed that a de facto cohabitation between the spouses of the annulled marriage will often continue if the annulment was not initiated by the spouses but by an authority. In addition, the draft gives the husbands the option of applying for annulment, which they would not otherwise have.

IV. Regulatory deficits

1. Undermining the basic decision of Art. 13 Para. 1 EGBGB

The draft ties in with the law to combat child marriage [31]. The international marriage law is based on the principle of Art. 13 Para. 1 EGBGB, according to which the marriage requirements are cumulative according to the nubends' home rights judge. Before the law on combating child marriages, this basic connection was only used in the cases provided for in Art. 13 Para. 2 EGBGB and with a view to the formal marriage requirements (Art. 13 Para. 4, Art. 11 EGBGB) as well as via the ordre public- Reservation deviated. With the aforementioned law and the proposed draft, two important exceptions to the basic decision of Art. 13 Para. 1 EGBGB are made. One may question the basic decision of Art. 13 Para. 1 EGBGB, as it is already done in the literature. [32] On the other hand, it is unsuccessful in terms of control technology to undermine them with more and more exceptions.

2. Handicraft defects

On closer inspection, the design reveals a large number of technical deficits. Even the phrase "marriage concluded under foreign law " of Art. 13 Para. 4 EGBGB-E is imprecise as it mixes the (obviously intended) material marriage requirements (Art. 13 Para. 1 EGBGB) with the formal marriage requirements (Art. 11, 13 Para. 4 EGBGB). [33 ] The draft overlooks the existence of the (priority) agreement between the FRG and the Kingdom of Morocco of March 25, 1981 [34], which provides for pension sharing in the case of plural marriages and for this purpose requires the recognition of polygamous marriages concluded in Morocco. [35] The draft also appears to be incompatible with the German-Iranian settlement agreement of February 17, 1929 [36]. [37]

It is also rightly pointed out that the draft only covers consecutive, not simultaneous plural marriages, or that it cannot be applied to the latter in a meaningful way [38].

The express requirement that the spouses habitually reside in Germany suddenly calls into question whether, contrary to the previous interpretation of Art. 6 EGBGB, a plural marriage can now be effectively concluded in Germany if only one or none of the spouses has their habitual residence here. [39 ] As a result, these deficits - diametrically opposed to the legislature's intention - lead to more legal uncertainty. The prohibition of participation of the registrar in § 1310 Paragraph 1 Sentence 3 No. 2 BGB-E is systematically wrongly located in the BGB, which is initially not called to apply; the correct regulatory location would be the (public law) PStG. [40]

In addition, the draft does not provide for any transitional provisions. The new regulation would therefore also be applicable to polygamous marriages that have been recognized in Germany for many years rather than in the future or after the recent influx of refugees. It is inadequate that these marriages could only be saved from annulment through the hardship provision of Section 1316, Paragraph 3, Sentence 1 of the German Civil Code. It is also extremely unfortunate that there is no overall cure (apart from Section 1315 (2) No. 2 BGB). [41]

For the sake of completeness, it should also be noted that same-sex marriages are not covered by the planned new regulation, see Art. 17b (4) EGBGB.

V. Conclusion

The draft law disadvantages those weaker ones whom we should protect because of the “fundamental values ​​of our legal system based on equality” [42].

In fact, the proposed change in the law will, above all, cause the situation of women in polygamous marriages to deteriorate considerably, and thus the opposite of what was intended. A patronizing ex officio repeal that discriminates against those affected is not an adequate, enlightened and humanitarian way of dealing with the phenomenon of polygamous marriage in Germany.

Prof. Dr. Maria Wersig
President

Brigitte Meyer-Wehage
Chair of the Commission on Civil, Family and Inheritance Law,
Right of other unions

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Remarks

[1] The previous Paragraph 4 becomes Paragraph 5.

[2] See Heiderhoff/ Coester-Waltjen, JZ 2018, 762; Jayme, IPRax 2018, 473; Dutta, FamRZ 2018, 1141.

[3] BR-Drs. 249/18, p. 1.

[4] Closer Mankowski, FamRZ 2018, 1134, 1135, 1139 f. Whether the polygamous marriage in certain constellations is even protected by Article 6, Paragraph 1 of the Basic Law (see above and in more detail Heiderhoff / Coester-Waltjen, JZ 2018, 762, 767), may stand there.

[5] Closer Mankowski, FamRZ 2018, 1134, 1136.

[6] Cf. MünchKomm /Coester, Art. 13 EGBGB Rn. 68.

[7]Helms, StAZ 2012, 2, 3; Staudinger /Mankowski, Art. 13 EGBGB Rn. 251; MünchKomm /Coester, Art. 13 EGBGB margin no. 69; Dethloff, FS Schwenzer 2011, 409, 414 f .; Coester / Coester-Waltjen, FamRZ 2016, 1618, 1625; cruiser, RIW 2010, 143, 155; OLG Düsseldorf, FamRZ 1993, 187, 189.

[8] Closer Coester / Coester-Waltjen, FamRZ 2016, 1618, 1625.

[9] Cf. MünchKomm /Coester, Art. 13 EGBGB Rn. 69.

[10] BR-Drs. 249/18, pp. 3 and 9.

[11] So too Jayme, IPRax 2018, 473, 475; Heiderhoff / Coester-Waltjen, JZ 2018, 762, 765 ff.

[12]Dethloff, FS Schwenzer 2011, 409, 415.

[13] Rightly point this out Heiderhoff / Coester-Waltjen, JZ 2018, 762, 766 out.

[14]Dethloff, FS Schwenzer 2011, 409, 415 with further references.

[15] ECJ, 01.03.2018 - C-558/16 - Dunning head.

[16] BR-Drs. 249/18, p. 2.

[17] Similar Heiderhoff / Coester-Waltjen, JZ 2018, 762, 766.

[18] Closer BeckOK BGB /Rooster, 46th Ed. 1.5.2018, BGB § 1316 marginal number 12; MüKoBGB /Wellenhofer, 7th edition 2017, BGB § 1316 marginal number 6.

[19] Federal Law Gazette I p. 2429 ff.

[20] That German marriage law already applies to refugees residing in Germany because of Art. 12 GFK (refer to this Heiderhoff / Coester-Waltjen, JZ 2018, 762 out), is not discussed.

[21] BR-Drs. 249/18, p. 1.

[22] BR-Drs. 249/18, p. 1.

[23] Cf. Coester / Coester-Waltjen, FamRZ 2016, 1618, 1626. Also those of Bausback (BR-PlPr. 969, p. 215 f., Cf. http://dipbt.bundestag.de/dip21/brp/969.pdf#P.215) estimated figures (extrapolated 100 cases per year in the entire federal territory) clear.

[24] So too Jayme, IPRax 2018, 473, 475.

[25]Coester / Coester-Waltjen, FamRZ 2016, 1618, 1626; Dethloff, FS Schwenzer 2011, 409, 421 ff.

[26] See Heiderhoff / Coester-Waltjen, JZ 2018, 762, 766.

[27] BR-Drs. 249/18, p. 1.

[28] See above section I.

[29]Heiderhoff / Coester-Waltjen, JZ 2018, 762 thankfully opened up two (isolated) literature sources from the 1960s and 1970s, to which the authors could possibly have referred, see fn. 4.

[30] BR-Drs. 249/18, p. 1, “Basic values ​​geared towards equality”.

[31] Federal Law Gazette I p. 2429 ff.

[32] So too Heiderhoff / Coester-Waltjen, JZ 2018, 762, 764.

[33] Likewise Dutta, FamRZ 2018, 1141 (1141).

[34] BGBl. 1986 II, 552.

[35] Points to this Jayme, IPRax2018, 473, 474 out.

[36] RGBl. 1930. II, 1006.

[37]Heiderhoff / Coester-Waltjen, JZ 2018, 762, 764.

[38]Dutta, FamRZ 2018, 1141 (1141).

[39] Rightly point this out Heiderhoff / Coester-Waltjen, JZ 2018, 762, 763 out.

[40]Heiderhoff / Coester-Waltjen, JZ 2018, 762, 763.

[41]Heiderhoff / Coester-Waltjen, JZ 2018, 762, 765.

[42] BR-Drs. 249/18, p. 1.