German Law

: Japanese Fairy Tales

The German Empire consists of twenty-six political States. These include

four kingdoms, six grandduchies, five duchies, seven principalities, three

free towns, and Alsace-Lorraine. With the exception of Alsace-Lorraine,

whose affairs are administered by the central imperial government, all are

sovereign States.

This individual sovereignty of a German State is somewhat analogous to

that of a State in the A
erican Union. However, we must for the purposes

of this chapter notice one important difference.

The legislative power of the central authority of the German Empire is not

only exclusive on certain imperial matters, but its acts take precedence

in such domestic concerns as domicile, judicial procedure, marriage and

divorce, and the general rights of a German subject.

The Constitution of the Empire (April 16, 1871) enumerates in detail the

powers, limitations and relations of the different organs of government.

From the Germania of Tacitus and other authorities we learn that among

the early Germans marriage was largely a matter of bargain and sale. In

the presence of certain relatives or friends the father or guardian of a

female delivered her to the bridegroom on receipt of the purchase price.

Marriage by abduction was also recognized, but the abducter was obliged to

make compensation to the abducted female's father or guardian, which

compensation amounted in effect to an agreed purchase price.

Although the consent of the female was never asked or considered on the

question of marriage, we are told by Tacitus that German wives were

remarkable for their fidelity and affection and were treated as friends by

their husbands, who had a high respect for their judgment in all concerns

of life.

From the mediaeval times Christianity has exercised a strong and correcting

influence on the relation of marriage in Germany. At first the Christian

Church recognized the informally declared agreement to marry on the part

of the man and woman, which is called nowadays a betrothal, as all that

was necessary to make them husband and wife. If the agreement referred to

some future time, however, they were not considered as actually married

until cohabitation had taken place. By the decrees of the Council of

Trent, ratified in 1564, the Roman Catholic Church made it a requirement

for the first time that in order to constitute a valid marriage the

declarations of the couple must be made before a priest and witnesses.

It was not until the eighteenth century that the Protestant Church in

Germany adopted the rule that a marriage is not concluded simply by

betrothal or mutual agreement, but requires a formal religious


The Personenstandsgesetz, which became law on January 1, 1876, provided

for the first time governmental regulation of marriage on a non-sectarian

basis for the German Empire.

It was not, however, until the enactment of the Civil Code that a clear

and methodical statement of the law of marriage and divorce was given to

the German people.

The German Civil Code (Buergerliches Gesetzbuch fuer das Deutsche Reich),

which became law on January 1, 1900, has been described by Professor

Maitland as "the most carefully considered statement of a nation's law

that the world has ever seen." It is in the Fourth Book of this scientific

codification, under the general title of Family Law, that we find the

German statutes of to-day on marriage and divorce. A summary of these

statutes follows:

MARRIAGE.--Religious definitions, dogmas and obligations respecting

marriage are not affected or considered by the German Code. Marriage is

treated as a civil contract to which the State is always an added party.

A legitimate child requires, before the completion of his twenty-first

year, the approval of his father for concluding a marriage; an

illegitimate child requires, before reaching maturity, the approval of the

mother. A male reaches his majority at twenty-one years of age and a

female at the completion of her sixteenth year, for the purpose of


IMPEDIMENTS TO MARRIAGE.--A marriage cannot be concluded between relatives

by blood in the direct line nor between brothers and sisters of full blood

or half blood, nor between persons one of whom has had sexual intercourse

with the parents, grandparents or descendants of the other.

Persons in the military service, aliens and officials who by the law

require special permission to become married cannot conclude a marriage

without permission.

FORM OF MARRIAGE.--A marriage is concluded by the parties appearing

together and declaring before a registrar, in the presence of two

witnesses, their intention to become husband and wife.

VOIDABLE MARRIAGES.--A marriage may be avoided by a spouse who has been

induced to enter the marriage status by fraud concerning such facts as

would have deterred him or her from concluding the marriage had he or she

been acquainted with the actual state of affairs. A marriage cannot be

avoided on the ground of fraud or misrepresentation as to the pecuniary

means of either party.

HUSBAND AND WIFE.--The parties are mutually bound to live in conjugal

community. The right to decide in all matters affecting the common

conjugal life belongs to the husband. However, if the decision of the

husband on these matters is an abuse and not a reasonable exercise of his

right the wife is not bound to accept his decision.

PROPERTY.--A wife has absolute power to deal with her separate property as

if she were a single woman. A wife's separate property includes also that

which she has acquired by her industry or in the course of a separate

business conducted by her. It is presumed in favour of the husband's

creditors that all chattels which are in the possession of either husband

or wife, or in their joint possession, belong to the husband. In regard to

articles intended exclusively for the personal use of the wife, such as

clothing, ornaments and working implements, it is presumed that as between

the spouses and the creditors of either that the articles are the property

of the wife.

MATRIMONIAL CONTRACTS.--Both spouses may regulate their property relation

by a contract made before or after the marriage.

DIVORCE.--Grounds or Causes. Either spouse may petition for divorce on the

following grounds:

A. Adultery of the other spouse;

B. An attempt by one spouse to kill the other;

C. Wilful desertion continued for the period of one year;

D. Offences specified in Sections 171 to 175 inclusive, of the Criminal

Code, including bigamy, incest and certain detestable crimes;

E. Such a grave breach of marital duty or such dishonest or immoral

conduct which disturbs the conjugal relation to such an extent that the

petitioner cannot reasonably be expected to continue the relation;

F. Insanity of the respondent continued for three years and of such a

character that the intellectual community between the parties has ceased

and there is no reasonable hope of its renewal.

Petitions for divorce must be filed within six months of the time when the

petitioner acquires knowledge of the facts constituting a sufficient


The petition cannot be allowed in any case if ten years have elapsed since

the happening of the cause for divorce. After divorcement both parties are

free to remarry.

If a marriage is dissolved for any cause the decree shall declare the

respondent to be the exclusive guilty party.

PUNISHMENT FOR THE GUILTY.--Adultery is punishable by imprisonment with

labour for a term not exceeding six months in the case of the guilty

married person and the partner in guilt if the marriage is dissolved on

the ground of adultery. Prosecution only takes place, however, on

proposal--that is, at the instance of the aggrieved spouse.

CONDONATION.--The right to a divorce is lost by condonation of the offence

relied upon as a cause. If a marriage is dissolved for any cause the

decree shall declare the respondents to be the exclusive guilty party.

EFFECTS OF THE DIVORCE.--A divorced wife retains the surname of her

husband unless specifically prohibited until she remarries.

If she is the innocent party she may, upon making a declaration before

competent authority, resume her maiden name. If she is the guilty party,

her husband, by making a declaration before competent authority, may

prohibit her calling herself by his surname. After she has thus lost the

surname of her husband she, by operation of law, resumes her maiden name.

MAINTENANCE.--A husband declared by a decree of divorce or judicial

separation to be the guilty party shall provide maintenance to his

divorced wife suitable to her station in life, in so far as she is unable

to obtain such maintenance out of her earnings and income.

A wife declared by decree to be the guilty party shall provide maintenance

to her divorced husband suitable to his station in life, in so far as he

is not able to so maintain himself.

The maintenance above referred to shall be provided by a money annuity

payable quarterly and in advance.

In some cases the person bound to provide such maintenance is required to

furnish a bond or security for the performance of the duty.

For sufficient reason the person entitled to the payment of such a money

annuity may demand a complete settlement in a lump sum.

The duty to provide maintenance is extinguished on the remarriage of the

party entitled to it or on the death of the party bound to make such


If a marriage has been dissolved on account of the insanity of one of the

parties the same spouse shall provide maintenance to the unfortunate


If the husband is bound to provide maintenance to a child of the marriage

the wife is also bound to reasonably contribute toward such maintenance

out of her income or earnings.

JUDICIAL SEPARATION.--The same causes which are sufficient for a divorce

will entitle the petitioner to a judicial separation if that form of

relief is preferred. If such a judicial separation has been granted either

spouse may apply for a divorce by virtue of the decree for separation,

unless the conjugal community has been re-established after the issue of

such decree.