Marital strife threatens constitutions
In the case of complete equality, a number of questions arise: Who, for example, shall determine the marital place of residence? Both? – Who shall have parental authority over the child? If husband and wife are equal but have different opinions, who should decide? The guardianship judge cannot, for if he accords that right to either the husband or the wife, he violates the constitution, according to which both are equal. – Another question: If the wife receives a nursing allowance, does the husband, as well?
It is further pointed out that women are privileged in many social policy laws, and rightly so. One is reminded of the protection of mothers and pregnancy and of the prohibition against longer working hours. With the social progress that is generally expected over the next years and decades, one reckons that women, because of their biological difference from men, should receive more and more privileges. One could think, for example, of a prohibition against night work.
Equal rights would entail equal obligations. And here the question is: Are women ready to perform fire-fighting service or participate in dike works, for example? The fact that women were called upon for all kinds of work during the war does not seem to be a counterargument. For the question is whether the conditions that prevailed under the previous regime should be regarded as normal, and whether women wish for a repeat of what was asked of them back then.
In addition, marital property law is seen as a major problem. According to the provisions still in force, that law is definitely geared toward the “higher daughter” who brought into the marriage assets over which she could no longer dispose freely as a wife.
Here the question arises as to whether one wishes to introduce, as generally valid law, the separation of property in marriage, or whether one wants to arrive at a system of jointly acquired property. So, if a woman, through work and thriftiness, has acquired something in marriage, and if that marriage is dissolved through the fault of the husband, who is a spendthrift and a reckless person, then is the wife obligated to pay the husband half of what she has acquired? Custody rights for the children, the wife’s right to alimony, and the provisions of guardianship law contain further prerogatives for women, which would disappear if the demand for complete equality were realized.
No immediate emancipation
Those in Bonn therefore consider it impossible to introduce equality as immediately valid law. Rather, the intent is to impose upon the legislature the task and obligation to bring about the equality of women as intended while preserving the prerogatives to which she can lay claim. For that reason, Dr. Helene Weber (CDU) has made the following motion: “Men and women have the same rights and obligations. Legislation shall realize this in all areas of the law.” It is emphasized that this formulation represents a programmatic point to which the legislature is obligated to adhere. If it does not, it violates the constitution. There is a belief in Bonn that the oversight of the public will be strong enough in the new democracy to guarantee that the legislature will fulfill its obligation in this regard as well.
Source: Die Neue Zeitung, January 13, 1949; reprinted in Klaus-Jörg Ruhl, ed., Frauen in der Nachkriegszeit 1945-1963 [Women in the Postwar Era, 1945-1963]. Munich: Deutscher Taschenbuch Verlag, 1988, pp. 159-62.
Translation: Thomas Dunlap
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