II. Equality and the Basic Law
An interpretation of the concept of equality in the sense of Article 3, Section 2, of the GG [Basic Law] proves difficult in this context. According to our conception of marriage and family, this article cannot be interpreted arbitrarily or without restrictions in the formal sense of the word. Rather, it can be applied only on the basis of an a priori understanding of marriage and family. Thus, Article 3, Section 2, of the GG cannot mean everything that is formally possible and could possibly be described as equality, but only what, presupposing the nature of marriage and family, is possible and meaningful within this institution. The nature of marriage and family thus forms the interpretive horizon of equality according to Article 3, Section 2, of the GG. The legislator of the constitution merely wanted to regulate certain legal consequences of marriage in accordance with the principle of equality, where this seemed possible without endangering the institution of marriage.
III. Main points of reform
The proposed changes to the law vary in scope. In the deliberations of the Commission, as in the public discussion of the same issues, two mutually interconnected questions were front and center: the decision-making power of the husband (§ 1345 BGB [Civil Code]) and that of the father (§§ 1627 ff., 1634)
A. (§ 1354): This clause already underwent an essential change in the drafts, and this clearly shows the difficulties of the subject matter. Hagemeyer’s memorandum stated as § b: “In all matters concerning the shared life, the spouses decide jointly.” The government’s draft proposed the following version (1354): “The spouses must regulate all matters pertaining to the marriage and family with mutual agreement. Each spouse must give consideration to the real or presumed will of the other. If there are differences of opinion, the spouses must try to arrive at an agreement. If this is not possible, the husband is entitled and obligated to make the decision while taking his wife’s views into account. A decision that does not correspond to the well-understood interest of the spouses is not binding for the wife.”
The Bundesrat eventually chose the following version: “The spouses must regulate all matters that concern marriage and family with mutual agreement. Each spouse must take the real or presumed will of the other into account.”
With this, an erroneous solution of the problem, often discussed up to that point, has dropped away.
For a general shift of decision-making in cases of conflict to a third party standing outside the marriage would have to be resolutely opposed. In all cases in which it is not absolutely essential (see below), the legal participation of third parties is dangerous to the marriage and alien to its nature. It seems intolerable to make the state in principle into a partner in marriage by way of the guardianship judge. Moreover, the majority of disputes would not be justiciable and the decisions rendered would not be enforceable. Non-judicial third parties (“marriage support” of various kind) can be helpful in some respects, if they are staffed with good people, but only if they have the authority to provide counseling.