Why has Germany not legalized same-sex marriage?

Law

content

1. Preliminary remark
2. Engagement
3. Marriage

  • Who can marry?
  • Are foreigners allowed to marry in Germany?
  • Who is responsible for getting married and how do I register?
  • What papers do we need?
  • For foreign partners: which foreign papers do we need? What is a single certificate?
  • Problems with obtaining foreign documents
  • What does a marriage cost?
  • Ceremony, groomsmen

4. Marital status: married

  • Marital status and civil status data
  • Incorrect description of marital status
  • Where do you have to indicate that you are married?

5. Married names and accompanying names

  • Declaration on the determination of the married name
  • Explanation of the determination of the accompanying name (double name)
  • Examples

6. Property regimes

  • What does community of gains mean?
  • Modification of the community of gains and choice of other property regimes

7. Pension equalization
8. Prenuptial agreement
9. Maintenance, especially after-marital maintenance for joint children

  • Care maintenance
  • Equity maintenance

10. Separation and divorce
11. Read more

1. Preliminary remark

Until the introduction of “Marriage for All” in October 2017, only different-sex couples (man and woman) were allowed to marry in Germany. Same-sex couples have been able to establish a registered civil partnership since 2001, but not marry.

Since October 1, 2017, two people of the same or different sex can marry each other in Germany (Section 1353 (1) BGB). This also includes intersex and non-binary people with open or diverse gender entries.

The establishment of a registered civil partnership is no longer possible. Existing registered civil partnerships can be continued as such or converted into a marriage (see our guide on conversion). Since there are hardly any differences between the law of civil partnerships and marriage law, most of the statements in this guide apply equally to registered civil partnerships. An overview of the few remaining special features of civil partnership law can be found in our guide to registered civil partnerships.

Note: This legal guide focuses on the topics that are particularly relevant for same-sex marriages and intersex and non-binary married couples, for example because there are differences to opposite-sex marriages. It would go beyond the scope of this guide to describe the complete marriage law. Complex legal questions, such as those that often arise in the event of a divorce, usually require legal advice anyway, preferably from a specialist lawyer for family law.

2. Engagement

A couple can get engaged before entering into marriage. The engagement is a contract, the conclusion of which is not bound to any form. In particular, it is not necessary for the engagement to be made public through a newspaper advertisement.

The engagement establishes an obligation to enter into marriage. However, compliance with this obligation cannot be sued. The promise of a penalty - i.e. the payment of a sum of money - in the event that the marriage is not entered into is also ineffective (Section 1297 BGB).

If one of the fiancés withdraws from the engagement, claims for damages may arise. This is the case if the other fiancé - or their parents - made expenses or concluded contracts in anticipation of the marriage, if these were appropriate and there is no good reason to dissolve the engagement (Section 1298 BGB). Compensation can be claimed, for example, for loss of earnings when giving up a job, for an apartment rented in vain or a loan taken out in vain.

If the marriage does not take place, the engaged couple can demand the return of engagement gifts from each other, for example engagement rings, jewelry, letters or mementos (Section 1301 BGB).

Fiancés are considered relatives. You therefore have the right to refuse to testify. This applies to all types of proceedings. It is controversial whether partners living together similarly to marriage and life partnership can be viewed as "engaged" and have the right to refuse to testify. The case law rejects this.

These statements also apply to the engagement before the establishment of a registered civil partnership. Since January 1, 2005, same-sex couples have been able to get engaged “legally” before they entered into a registered civil partnership (Section 1 (4) LPartG, old version). The regulation in the LPartG referred to the provisions in the BGB on engagement before marriage (§§ 1297 ff. BGB). The LPartG did not originally provide for the possibility of engagement when the registered civil partnership was introduced in 2001, but it was introduced in 2005. Since October 1, 2017, it has no longer been possible to enter into a registered civil partnership; accordingly, couples can only get engaged to enter into a marriage.

3. Marriage

This section answers the most important questions about marriage: Who can marry? Which office is responsible? What papers do we need? What if one of the two (or both) does not have German citizenship? What does the marriage cost? Do I need groomsmen? How does the ceremony work?

A. Who can marry?

Since October 1, 2017, two people of different or the same sex can marry in Germany (Section 1353 (1) sentence 1 BGB). This of course also includes intersex and non-binary people with an open or diverse gender entry (see legal reasons for Section 1353 (1) BGB, BT-Drs. 19/4670, p. 19).

Requirements for marriage:

  • Legal capacity (§ 1304 BGB): Anyone who is incapable of contracting cannot enter into marriage
  • Of legal age (§ 1303 BGB): a marriage may not be entered into before the age of majority has come (§ 1303 S. 1 BGB). The registrar has to refuse to cooperate (§ 1310 Abs. 1 S. 3 BGB). Nevertheless, marriages concluded are ineffective if the married person is younger than 16 (§ 1303 S. 2 BGB). If the person is between 16 and 18, the marriage can be annulled (Art. 13 Paragraph 3 No. 2 in conjunction with Art. 17b Paragraph 5 EGBGB).
  • No relationship (§§ 1307 f. BGB): A marriage may not be concluded between relatives in a straight line (parents, children, grandchildren, great-grandchildren, etc.) or between siblings or half-siblings. If the relationship is based on adoption,shouldthe marriage cannot be entered into, unless the relationship of acceptance has been terminated or if the family court has granted exemption (Section 1308 BGB).
  • No marriage of convenience: the registrar must refuse to cooperate if it is obvious that the engaged couple want to enter into a marriage of convenience (Section 1310, Paragraph 1, Sentence 3, No. 1 in conjunction with Section 1314, Paragraph 2, No. 5 of the German Civil Code).

It is also possible to get married if the couple has previously married or established a civil partnership in another country. This previous marriage or civil partnership does not need to be canceled. This results from § 1306 BGB. According to this, only the marriage or civil partnership "with a third party" represents an obstacle to marriage (cf. also the explanatory memorandum to § 39 PStG, BT-Drs. 19/4670, p. 32).

B. Are foreigners allowed to marry in Germany?

In Germany, two foreigners can marry regardless of their gender. You do not need a place of residence or permanent residence in Germany and can therefore marry while you are on vacation in Germany.

German law is always applicable to same-sex marriage in Germany. The same applies if at least one of the spouses is neither female nor male (cf. Art. 17b Paragraph 4 in conjunction with Paragraph 1 EGGB).

The following applies to the other effects of marriage and divorce:

  • For the “general effects of the marriage”, the spouses can make a choice of law in accordance with Art. 14 EGBGB (Art. 17b, Paragraph 5, Clause 2 EGBGB). This means that they can choose whether German law should apply to their marriage.
  • The matrimonial effects of same-sex marriage are subject to the applicable law in accordance with Regulation (EU) 2016/1103 (Art. 17b, Paragraph 4, Clause 3 EGBGB and the "International Law of Property Procedure" - see our guide to foreign marriages).
  • The law applicable to divorce and separation without dissolution of the marriage bond is based on Regulation (EU) No. 1259/2010 (see our guide to foreign marriages).

C. Who is responsible for the marriage and how do you register?

The registry offices are responsible for the marriage.

The couple must register the intended marriage at the registry office in whose area of ​​responsibility one of the partners is domiciled or habitually resident. If neither of them has a place of residence or habitual abode in Germany, the marriage can be registered at any registry office (Section 12 (1) PStG).

Both partners should register personally. If one of the fiancés is unable to do this, the partners can also mutually authorize each other in writing. If both partners are prevented from appearing at the registry office for important reasons, they can also register the establishment of the marriage in writing or through an authorized person. In these cases, the partners must personally confirm the declarations made when registering for the marriage (Sections 28 (1) and 29 (1) PStV).

The marriage does not have to take place at the registry office where it is registered. The partners can also choose a different registry office for the ceremony. After the marriage prerequisites have been checked by the registration office, you will receive a certificate that the marriage can be undertaken. This notification is binding for the other registry office that is to undertake the marriage for six months (Section 13 (4) PStG).

D. What papers do we need?

When registering the marriage, the partners * must prove their identity, name, marital status and place of residence for the jurisdiction.

The partners must therefore submit:

  • a valid passport or identity card or other official ID with a photo. If the nationality of foreigners is not evident from the identity document, they must prove their nationality by means of a certificate from the competent authority in their home country.
  • if the partners are registered in Germany, a certificate of residence from the registration authority (not a mere registration certificate) stating the marital status, nationality and place of residence, unless the registry office and the registration authority belong to the same city or local authority.
  • if the partners do not want to establish the marriage at the registry office of the main residence, but rather the secondary residence, an additional certificate from the registration office of the secondary residence.
  • a certified printout from the birth register. A mere birth certificate is not enough.
  • For persons who have already been married or partnered with a third person, a marriage certificate of the previous marriage or a civil partnership certificate of the civil partnership with a notice of termination. If the dissolution is not entered in the marriage or civil partnership certificate, also the dissolution judgment with final notice or the death certificate.
  • If the last marriage or civil partnership was not entered into at a German registry office, proof of the dissolution of any further proceedings or civil partnerships must also be provided if a corresponding examination has not already been carried out by a German registry office in the case of an earlier marriage or establishment of a civil partnership.

All documents must be submitted in the original. As a rule, the certificates may not be older than six months, the certificate from the registration authority not older than 14 days.

E. For foreign partners: which foreign papers do we need? What is a single certificate?

Additionally In addition to the documents mentioned under D above, foreigners must submit a so-called certificate of unmarried status for same-sex marriage (sometimes also called certificate of marital status; in the case of different-sex spouses, on the other hand, it is called a certificate of marital status). In doing so, they prove that they are fit for marriage under the law of their home state. The same applies if at least one of the spouses is neither male nor female - the foreign partner must also provide a certificate of unmarried status.

Which papers have to be procured for the single certificate and whether and in what form the papers have to be certified differs from country to country. You can do that in

read up. It is advisable to check both lists to see which papers are required from the respective home country.

The foreign documents must be accompanied by a translation Submitted and partially by a translator approved in Germany certified become.

The special terms used in these lists have the following meanings:

  • Affidavit:The "Affidavit" is an affirmation in lieu of an oath.
  • Legalization:Legalization is carried out by the consular officers of the German embassies and consulates. The legal basis of their activity is § 13 of the Consular Act, which states among other things: "The consular officers are authorized to legalize the public documents issued in their district. The legalization confirms the authenticity of the signature, the capacity in which the signer of the document acted and, if applicable, the authenticity of the seal with which the document is provided. The legalization is carried out by means of a note to be placed on the document. " Legalization by the German diplomatic mission abroad requires that the document has been certified by the competent authority in the home country.
  • Apostille:The apostille confirms the authenticity of a public document, the original of which must be presented. It is issued by an authority in the state that issued the document. There is no need for the German diplomatic mission to participate, as is the case with legalization.
  • Special review:In a number of countries, the German diplomatic missions abroad have stopped legalizing documents. Instead, they commission local lawyers to check whether the facts certified in the documents are correct. The examination cannot be requested by the fiancé, but is initiated by the German registry offices by means of a corresponding request for official assistance after the engaged couple has obtained all the necessary papers and submitted them to the registry offices.

Incidentally, the obligation to provide the certificate of unmarried status does not arise from Section 1309 of the German Civil Code (BGB), as is the case for mixed-sex marriages. According to this regulation, foreigners have to provide a certificate from the internal authority of their home state that the marriage according to the law of the foreign state concerned does not prevent marriage (certificate of marital status).

However, this only applies in cases in which the marriage is subject to foreign law. German law is always applicable to same-sex marriages concluded in Germany. This results from Art. 17b Paragraph 4 in conjunction with Paragraph 1 EGBGB. Therefore, § 1309 BGB does not apply to these marriages. The same applies to marriages in which at least one person is neither male nor female (also Art. 17b Paragraph 4 in conjunction with Paragraph 1 EGBGB).

As a result, it makes no difference: foreigners who want to enter into a same-sex marriage must of course still prove that they meet the marriage requirements. You must therefore bring a "single certificate".

There is no factual difference between certificates of unmarried status and the certificates of marriageability required for different-sex marriages. The registry offices have also previously required foreign fiancées who wanted to enter into a registered civil partnership to submit the same documents as they did from foreign fiancées who wanted to enter into a different-sex marriage.

F. Problems with obtaining foreign documents

Some states only issue single / marital status certificates when naming the person to be married. Others require (additionally) a notarized confirmation of the engagement. This makes it clear in the home country of the foreign partner that the couple wants to enter into a same-sex marriage. This can be problematic if homosexuals and bisexuals are marginalized or persecuted in the country concerned.

If the future spouses do not want to reveal to their home authorities that they want to enter into a same-sex marriage in Germany, they can also state that they want to marry a different-sex partner in Germany and that they need a certificate of marital status. If the home authority insists that the personal details of the partner be given, the personal details of a friend can be given.

This is not an indirect falsification of documents within the meaning of Section 271 of the Criminal Code. For this, only the content of the document is decisive, which is to be proven by it, i.e. the confirmation that the foreigner is not married or single. This confirmation is correct. The fact that incorrect information was given in order to receive the certificate is of no criminal relevance.

In such cases, however, it is recommended that the personal details of an actually existing person are given and that these can be reproduced on request without hesitation. The person concerned should also be informed of the project and asked for their consent.

If there are otherwise major problems in obtaining the necessary papers, you can ask the registry office to be satisfied with an affidavit. This is provided for in Section 9 (2) PStG:

"If those who are obliged to provide evidence are unable to obtain public documents or only with considerable difficulty or disproportionately high costs, other documents can also serve as the basis for certification If the notarization of significant actual claims by the persons concerned cannot be proven by public or other documents, the registrar can request and accept oaths to prove these facts instead of the persons concerned or other persons. "

Unfortunately, the registry offices are not ready to do this on a regular basis. In such cases it may be advisable to get married abroad first, e.g. in Denmark or in Las Vegas in the USA, and then later for the general effects of the marriage in accordance with Art. 17b, Paragraph 5, Clause 2 in conjunction with Art. 14, Paragraph 1 No. 1 EGBGB to choose German law. The choice of law can also be brought about by marrying again in Germany.

In Denmark there are agencies that organize marriage and negotiate a solution with the competent authorities if there are problems with the papers. The agencies can be found on the Internet.

G. What does a marriage cost?

The fees of the registry offices for marriages result from the fee or cost lists of the federal states. They range between € 50 and € 150. Higher fees are incurred for foreign spouses if the wedding is to take place on special days outside of the office hours of the registry offices or in special locations. Most of the time, the registry offices provide information on the amount of fees for marriage ceremonies on their websites.

H. ceremony, groomsmen

According to §§ 14 Abs. 2 PStG, the marriage should be carried out in a dignified form corresponding to the importance of the marriage. The partners must declare to the registrar personally and with simultaneous presence that they want to enter into the marriage with each other. The declarations cannot be made subject to a condition or a time limit (§§ 1310 Paragraph 1, 1311 BGB). Groomsmen can or do not have to be there.

Section 1312 of the German Civil Code regulates:

"When getting married, the registrar should ask the couple individually whether they want to marry each other and, after the couple have answered in the affirmative, state that they are now legally bound spouses. The marriage can be concluded in the presence of one or two witnesses take place if the couple so wish. "

There are no further legal requirements for the process of marriage. It is therefore up to the registrars how they organize the ceremony. You should therefore discuss with the registrar how you want the ceremony to take place.

Ultimately, it is up to the couples themselves how they organize the day and the ceremony. If the partners want to kiss after they say yes, if they exchange rings, if one (or both) throw a bouquet of flowers into the audience - or whatever - nobody will be able to forbid them during this hour .

4. Marital status: married

What does the marital status "married" mean? Where do I have to indicate that I am married? Do I have to tell my employer or my landlord about this? Do I have to answer the question about my marital status in the interview?

A. Marital status and civil status information

In addition to the first and last name, the date of birth and the place of birth, the marital status belongs to the civil status data of a person. The registry offices document a person's civil status data in the birth register, in the marriage register, in the civil partnership register and in the death register. The civil status data is also stored in the registration office by the registration offices.

The usual abbreviations for the marital status are specified in the "data record for the reporting system". Sheet 1401 "Marital status" of the data record for the registration system stipulates that the following key is to be used if the marital status is to be specified:

  • LD = single
  • VH = married
  • VW = widowed
  • GS = divorced
  • EA = marriage annulled
  • LP = in a registered civil partnership
  • LV = civil partnership dissolved by death
  • LA = canceled civil partnership
  • LE = civil partnership dissolved by declaration of death
  • NB = not known

There is no legal basis for these abbreviations. Usually, however, all other public and private organizations and companies also use the abbreviations prescribed in the "data record for reporting" so that their systems are compatible.

In the case of illegitimate partnerships, a distinction has so far been made between different-sex and same-sex partnerships. The former were referred to as marriage-like unions, the latter as life-partnership-like unions. In fact, even before marriage was opened up for same-sex couples, the distinction no longer had any legal significance, because a distinction was no longer made according to gender, but rather whether it was a community of commitment and responsibility or a mere flat-sharing community. The opening of marriage to same-sex couples has not changed that.

B. Incorrect description of marital status

After the introduction of the civil partnership, many authorities and companies could not enter the marital status "civil partnership" in their IT systems. The marital status “civil partnership” was also not provided for in their forms. On the other hand, the authorities and companies were not prepared to adapt their IT systems and forms to the Civil Partnership Act because they shied away from the costs. The life partners were therefore continued to be "single".

Many life partners resisted and sued successfully. After marriage has been opened up to same-sex couples, this game repeats itself. The IT systems of some authorities and companies do not accept same-sex married couples. The spouses will therefore continue to be listed as "life partners" in the letters and forms of these authorities and companies.

You can defend yourself against it. With reference to the case law of the Federal Administrative Court (BVerwG, ruling of 4.3.2004 - 1 WB 32.03), the authority or company concerned should be asked to correct the marital status information. The marital status “civil partnership” is different from the marital status “married”. However, everyone has a right to the fact that the personal data stored is correct.

C. Where do you have to indicate that you are married?

In the case of life partners, the notification that you have made a partner is associated with a coming-out. This is not necessarily the case with the announcement that you have got married. But the employees have to expect that the employer or one of his employees will ask them who they have married. Employees may also be asked to provide a copy of the marriage certificate. Then they have no choice but to reveal that they have married a same-sex partner.

If employees have concerns that their employer will learn of their sexual identity, they do not need to report the marriage or partnership. You only need to indicate this to the employer if you want to derive rights from it, e.g. the consideration of marriage or partnership in the family allowance. If the employees do not want their employer to find out about their marriage, they should apply to the tax office in accordance with Section 38b (3) EStG that they keep tax class I for single persons.

When applying for a job, you can safely state that you are married. If the employer asks, it will appear from the questions that he thinks the applicant is married to an opposite-sex partner. The applicant does not need to clarify this error, but can answer in the affirmative. "Sexual identity" is a highly personal characteristic that, as a rule, must neither be explored nor disclosed. This also applies to the fact that you have married a same-sex partner. If an applicant answers the relevant questions incorrectly, i.e. if he lies to a legally inadmissible question, there are no legal negative consequences. In such cases he has the right to lie.

In the meantime, apart from the family allowance for married civil servants, there are no longer any additional benefits that are linked to marital status. The employer therefore has no right to request submission of the marriage certificate; employees do not need to submit the marriage certificate. Married civil servants who do not want to waive the family allowance must present the marriage certificate to their salary office. Since the salary offices are independent offices, the employer is not informed about the submission of the marriage certificate.

For applicants and employees at institutions of the Catholic Church, see our guide "Catholic Church".

Couples who already live together in a rented apartment do not need to inform the landlord that they have married. It is different if the spouse is to move into the rented apartment after the marriage.

5. Married names and accompanying names

The determination of the married name and accompanying names is based on § 1355 BGB, if both spouses are German citizens. The rules for this are explained below.

If at least one of the spouses is a foreigner, the married name can also be chosen according to the home law of the foreign partner (Art. 17b Paragraph 4 in conjunction with Paragraph 2 Clause 1 and Art. 10 Paragraph 2 EGBGB, see the Guide to Foreign Marriages).

Widowed or divorced spouses keep the married name. The maiden name or the name that was used up to the determination of the married name can be accepted again by declaring to the registry office. Alternatively, the married name can be preceded or added to the maiden name or the name used at the time the married name was determined. The declaration must be publicly authenticated (§ 1355 Paragraph 5 BGB).

Information on determining the surname of a child after a stepchild adoption can be found in our guide to stepchild adoption, point 12 Child's surname.

The following statements apply equally to the determination of the civil partnership name and the corresponding accompanying names.

A. Declaration on the determination of the married name

The couple can determine a common family name (married name). If it doesn't, the spouses continue to use their previous names (Section 1355 (1) BGB).

The married name can be the maiden name of a partner or the name of a partner at the time of the declaration on the determination of the married name (Section 1355 (2) BGB). The maiden name is the name that is to be entered in the birth certificate at the time of choosing the married name (Section 1355 Paragraph 6 BGB). This can be a different name than the original maiden name, if e.g. B. changed the maiden name through adoption.

It is no longer possible to create a double name from the names of the partners and to declare it to be the common married name. A combination of both names is only possible by specifying an accompanying name and only for one of the two partners (see below).

The declarations about the determination of the married name should be made at the time of the marriage. The partners can also determine the married name later. There is no time limit for this. The later declarations must be publicly certified (§ 1355 Paragraph 3 BGB). Once you have decided on a married name, you can no longer correct your choice afterwards.

Note for registered civil partnerships: In the past, life partners could only determine their maiden name as the civil partnership name, not the names used (for example from a previous marriage). This is no longer the case. If a couple would like to subsequently determine a name used at the time of the partnership as the civil partnership name, this is possible at any time by means of a publicly certified declaration to the registry office.

B. Declaration on the determination of the accompanying name (double name)

The partner whose name is not the married name can prefix or add their own maiden name or the current name as an accompanying name to the married name.

But this is only possible if it doesn't result in a triple name. If the married name already consists of a double name, no further accompanying names can be added. It is therefore not possible to use a double name as an accompanying name - in this case, only one of the names can be added as an accompanying name (Section 1355 (4) BGB).

The choice of the accompanying name is made by declaring to the registrar (s) when the marriage is established or subsequently by means of a publicly certified declaration. There is no time limit for this.

Unlike the choice of the married name, the choice of the accompanying name is revocable. After the revocation, the choice of a new accompanying name is not permitted. You can therefore not change the position of the accompanying name retrospectively by revoking it.

C. Examples

The following example serves to illustrate the various options for choosing married names and accompanying names:

Corinna Meiningen, née Schmidt, marries Angela Schön. To determine their married name and accompanying names, Corinna and Angela have the following options:

  • You don't choose a married name. Then they keep their names (Corinna Meiningen and Angela Schön).
  • You can choose the names Meiningen, Schmidt or Schön as the married name, both of which then have it (Corinna and Angela Meiningen, Corinna and Angela Schmidt or Corinna and Angela Schön).
  • You can use their married name Not from a combination of their names Meiningen, Schmidt and Schön. The double names Schmidt-Schön or Schön-Schmidt are just as impossible as married names as Meiningen-Schmidt or Meiningen-Schön etc.
  • If the two choose the married name Schmidt or Meiningen, Angela can put her maiden name Schön in front of the married name (Corinna Schmidt and Angela Schön-Schmidt or Corinna Meiningen and Angela Schön-Meiningen) or add it (Corinna Schmidt and Angela Schmidt-Schön or Corinna Meiningen and Angela Meiningen-Schön). Corinna, on the other hand, cannot choose an accompanying name because her name Schmidt or Meiningen has become a married name.