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The Position of the Marriage Law Commission of the Protestant Church in Germany on the Draft Version of a Family Law (December 1952)

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The Protestant Church has, of course, no reason to champion the unchanged preservation of the husband’s general power of decision-making. It can certainly assent to a revision of § 1354 that obligates the spouses to decide jointly and that leaves the decision to the husband only in case of conflict. In this event, the explicit provision should come into play that the husband is legally obliged to attempt to arrive at a shared will under all circumstances, that the intentional failure to make such an attempt already constitutes an abuse of the husband’s decision-making power, and that in this case the binding nature of his decision is abrogated. At the outside, the Protestant Church could even accept the complete elimination of the husband’s previous decision-making right within marriage, on the condition that the modified decision-making power of the father vis-à-vis the children is maintained.

The Commission does not find itself compelled by the Protestant understanding of marriage to advocate the preservation of a decision-making right for the husband. Holy Scripture does not know a spiritual elevation of man over woman. The apostolic admonitions to woman to subordinate herself to man can therefore be applied to married life only for non-spiritual things. These admonitions cannot be rendered non-binding for the present by declaring them the product of their time. In spite of this concern, the Commission, even though an abolition of the husband’s decision-making power would thus reveal a difference between the Protestant conception of marriage and the legal norm, does not simply regard the preservation of the husband’s right of decision-making as called for as a legal norm for the internal relationship of the spouses. It acknowledges the concerns that are opposed to legalizing the relationship of Christ to the community that is – according to apostolic opinion – exemplary for the relationship between husband and wife in marriage (see Eph. 5, 22, 23). It was further reinforced in its position by the fact that a legally normatized decision-making right for the legally hardly graspable relationship of the spouses to each other would confront the judge with what is for him an unsolvable task of determining and judging circumstances that often escape the judgment of those most closely involved.

B. (§ 1634): The relationship between parents and children is fundamentally different from that between spouses. Likewise, the authority of the father is different from that of the mother. In the formation of the marriage, there must be room for the office and authority of the father as much as for that of the mother. The father’s and mother’s authority are equal but not the same. They refer to each other, are mutually conditioned, and do not represent isolated rights. The Christian church, which venerates God as the father, cannot, with the elimination of the paternal decision-making power, abandon the conceptual content of this profession and the relevant apostolic admonitions.

No side has laid claim to the final decision-making right for the mother. If this final decision-making right is not to lie with the father, it can only be transferred to an authority outside the family. The same crucial concerns that were already presented for the sphere of relationships between the spouses speak against the general involvement of a third, especially governmental party in decisions concerning the children.

Guardianship judges, too, can make false decisions. In fact, in the view of the Commission, the danger that they decide in a thoughtless and cursory fashion is even greater than with the father. Added to this is that interference by the state into a sphere reserved for the family at a time and with a people who have not yet internally overcome the dangers of a state’s totalitarian claim, and which [still] has the excesses of totalitarian state thinking before its eyes, contains particular dangers. The meaning and danger of such a regulation lies not only in the individual decisions of the court, but also in the fact that the expanded, constant possibility of invoking it influences the relationship of the spouses. In an emergency, it is unavoidable; as a rule, it is dangerous to the survival of the marriage. In this situation, in particular, it seems especially important to keep the necessary decisions within the family as much as possible.

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