Zivilgerichtliche Vertragskontrolle im Eherecht (English shop)

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This dissertation examines the civil-court case law on the necessity of a review of the substance of marital agreements. The substantive review introduced into marriage law by a judgment of the Bundesgerichtshof in 2004 is based on a constitutional-court requirement dating from 2001.

The study first sets out the starting point of the civil case law prior to 2001. During that period, the spouses’ freedom of contract was emphasised. No review of the substance of concluded agreements took place. The statutory provisions on the matrimonial property regime, maintenance and the equalisation of pension rights were open to individual disposition almost without restriction.

With several decisions of the Bundesverfassungsgericht, the legal situation changed fundamentally. In order to safeguard the freely responsible action of both spouses, Germany’s highest court called for the carrying out of a substantive review such as is already practised in the law of suretyship and in a number of other areas of law. The present work traces the reasoning of the Bundesverfassungsgericht and examines its coherence. Particular attention is paid to the compatibility of this derivation with earlier constitutional-court decisions in which a substantive review was required.

The Bundesgerichtshof sought to implement the requirement of the Bundesverfassungsgericht by introducing a two-tier substantive review of marital agreements. It introduced the concepts of validity review (Wirksamkeitskontrolle) and exercise review (Ausübungskontrolle). Both were to be given concrete form by the likewise newly introduced core-area doctrine (Kernbereichslehre). The core-area doctrine establishes a hierarchy among the individual provisions of the BGB on the consequences of divorce. It takes into account provisions on matrimonial property law as well as on maintenance law and pension rights.

The present study considers both the compatibility of the civil courts’ implementation of the constitutional-court requirements and the relationship of the core-area doctrine to civil-law doctrine. At the same time, the work traces in detail the development of the civil case law and its reflections in the legal literature. Case law and literature have been taken into account up to July 2007, with the exception of the additionally incorporated reform of maintenance law.

The dissertation also includes conclusions drawn from the changed case law in the form of recommendations for future contract-drafting and judicial practice.