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Constitutional Court and spousal support - the details of the recent decision of the "convertible-marital relationships"

In his earlier yesterday presented here, decision of 01.25.2011, Az 1BvR 918/10 (also the press release More) collects the Federal Constitutional Court of the Supreme Court to the "convertible-marital relationships" and the "tripartite" in the event that the debtor both his ex and his current wife has to make a living. Here are the details: The Federal Constitutional Court
like to point out that even after the maintenance reform determine the amount of spousal maintenance is four stages. First is the determined need the dependent spouse to clarify then, the question of whether he is need , then, whether the used even powerful and in a fourth step, finally, whether this performance also given the claims of other creditor in full (in the distribution lack case) exists.

In principle, the post-divorce maintenance - not as long as § 1578 b BGB a reduction of commands before appropriate to the reasonable needs - determined after the reform on the basis of conditions at the time of divorce. Thereafter, the changes are to be considered only exceptionally and where they were

• expect either at the time of divorce with high probability, and this expectation, the marital relationships had already marked;
• or the changes in the surrogate featured a previously rendered financial management dar.

was from this investigation scheme, the legislature - as the Federal Constitutional Court - in the reform did not depart from 2007. Although he had seen want to relieve the second family financially, for this purpose but normalized the one hand, stricter requirements for the obligation of the divorced wife to work (and modified § 1570 BGB ) and also the possibility of limiting set of maintenance claims, in which he § 1578 b BGB inserted into the law have. More of the legislature you can not discharge the second families want to do. Moreover, it was intended to leave the protection of the divorced wife.

this will of the legislature had circumvented the Supreme Court, however, with his doctrine of the convertible-marital relationships in combination with the three-division method:

• Er definiere nicht nur den Bedarf des geschiedenen Ehegatten anders, als das Gesetz das wolle ( § 1578 I 1 BGB : "...bestimmt sich nach den ehelichen Lebensverhältnissen"), in dem er eben diese "ehelichen Lebensverhältnisse" plötzlich "wandelbar" mache. 
• Hinzu komme, dass er die Prüfungsschritte eins ( Bedarf) und drei (Leistungsfähigkeit) zusammenziehe. Der Gesetzgeber habe gewollt, dass der Umstand, dass der Unterhaltspflichtige noch anderen Personen Unterhalt leisten müsse, nur bei der Leistungsfähigkeit bzw. im Rahmen der Verteilung nach § 1609 BGB berücksichtigt werde. Nun ziehe der BGH die Berücksichtigung that factor in the needs assessment before.
• determine Suddenly the marriage no longer needed after the marital relations, but on by divorce and remarriage changed, no longer really "marital" relationships.
• 'll Moreover, what by the matrimonial relationships "pot" is no longer divided by two, it will report what the new wife transferring, with this cast and dividing the whole by three - but only if the divorced wife by more than get the same thing as if the new wife was not there.

The doctrine of the convertible-marital relationships in combination with the tripartite division is therefore on the Constitutional Court on ensuring that accept the divorced wife over the will of the legislature for discharge to the second family addition favor of the second family usually a further reduction in their maintenance claim must rarely again same result occurs, and can never do better.

why the Constitutional Court turned back the clocks. The maintenance of the divorced wife will have to be now again determined by the method, which was the decision of the BGH of 06.02.2008 = Az XII ZR 14/06, see eg BGH v. 25.11.1998 = XII ZR 98 / 97 = FamRZ 1999, 367, 368 f. The fact that the maintenance debtor and a current wife maintenance has to be performed, so now again only at the third test step - to consider - performance.

Conclusion:

1. The Federal Constitutional Court "tilts" So not the whole maintenance reform, as was feared at the weekend in isolation.
2. It corrects only a strongly oriented to practice, but really over the top shooting out of the Supreme Court case law, and also within the XII. Senate was not without controversy (see Weber-Monecke, in Münchener Kommentar zum BGB, 5 Aufl.2010, § 1361 para. 14 f.).
3. matter that we welcome the verdict may well: be whether the remark in ruling and press release, the Supreme Court had resolved by the concept of the legislature to calculate the post-divorce maintenance, and by "their ideas of justice", so should have, is another matter. Because if you would see the thing really that would be the way to § 339 StGB not far off. Strong stuff!

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