What is a husband and a wife

29djbZ 1/2020 Konstanze Plett consent of the husband to the gainful employment of the wife | Reports and opinions takes half just two months. Longer parental leave is still predominantly taken by the mother. If you are absent for a longer period, your vacant position will be occupied again by a colleague. Allocation is not only limited to the period of parental leave, but is permanent. In contrast, with shorter parental leave of two or three months, a vacation replacement is usually found to temporarily take care of the work. This almost always enables the fathers to keep their old job. It is only through the justification for the assignment of the new job that it can be determined whether there is discrimination. If the returnees are assigned a new, less attractive job simply because of their absence during parental leave, there are many arguments in favor of discrimination. However, the employer's intention to discriminate is not required for this. On the other hand, there is no discrimination if the mother is assigned a new work task due to a company restructuring that has taken place in the meantime. She would have been equally affected by this if she had continued to work instead of taking parental leave. The Berlin-Brandenburg State Labor Court (ruling of June 16, 2017, Az. 3 Sa 123/17) has awarded a mother a compensation payment of 9,000 euros who, after a pregnancy-related employment ban, followed by one year of parental leave, moved from Potsdam to Frankfurt am Main has been. A colleague who had been hired in the meantime should continue to be employed at her old job in Potsdam, as the mother had only worked in Potsdam for a shorter period due to her pregnancy. Most discrimination allegations court cases end in a settlement with part of the compensation claimed. A claim for compensation due to discrimination exists in addition to a claim for damages, which can be asserted, for example, for increased travel costs due to the change of work location. No employer wants to have a judgment established that it is discriminating against its female employees. After a fundamental rethink on the part of her employer, the employment agency was also allowed to return to her previous place of work in Brandenburg a.d.H. to return. Hopefully this is how popular opinion will begin to change. DOI: 10.5771 / 1866-377X-2020-1-29 Since when has the husband's consent to the wife's gainful employment no longer required? Prof. Dr. Konstanze Plett, LL.M. (UW-Madison) Professor (retired) at the University of Bremen, Faculty of Law The question in the heading is actually incorrectly posed, although it is often read and heard that the former sovereignty over the wife's outside employment only ended in 1977. According to the dogmatics of the German Civil Code (BGB) 1, wives of full age did not need any consent (neither in the form of consent nor in the form of approval) to enter into employment relationships since the BGB came into force on January 1, 1900. In reality, however, the view was evidently widespread that the model of housewife marriage, which in fact formed the basis of the BGB until July 1, 1977, implied such a requirement. In the following, the legal situation is presented first (1.). Further considerations are necessary to answer the question further (2.). 1. Legal position according to the BGB The following statements can already be found in the materials relating to the BGB: “The BGB. assumes that the wife is not subject to a restriction of legal capacity as a result of the marriage. "2 And:" With regard to the gender difference, the principle of equality of both sexes recognized in common and other rights (...) is the rule. In relation to previous rights, equality is being extended, namely with regard to the guarantee of female persons, the legal capacity of the wife, her gain through work or through the independent operation of a commercial business, with regard to the parental authority of the mother, the ability to testify in a will his etc. ”3 The restrictions to which wives were subject concerned“ only ”“ matters relating to communal life ”such as place of residence and apartment (§ 1354 BGB 1896) 2.1.2002 (Federal Law Gazette I p. 42, 2909; 2003, 738). Paragraphs that were valid between the entry into force of the BGB on January 1, 1900 and the entry into force of the law on equal rights for men and women in the field of civil law (Equal Rights Act - GleichberG) on July 1, 1958 are cited with the addition "BGB 1896", Paragraphs of the GleichberG with the addition "BGB 1957". 2 Mugdan, B. (Ed.), The entire material on the Civil Code for the German Reich, Vol. 1: Introductory Act and General Part, Berlin 1899, p. 247. 3 Mugdan (fn. 2), p. 370, emphasis KP. djbZ 1/202030 Reports and statements | Konstanze Plett consent of the husband to the gainful employment of the wife and the administration and usufruct of her property brought into the marriage (§ 1363 BGB 1896); In this respect, the husband had the say.4 With regard to the reserved property - according to the legal definition in § 1366 BGB 1896 “items intended exclusively for the personal use of the woman, in particular clothes, jewelry and tools” - the married woman also remained solely responsible and responsible (§ 1365 BGB 1896). Reserved property was also “what the woman acquires through her work or by independently running a business” (§ 1367 BGB 1896) .5 In her own affairs, the adult wife6 was therefore no worse off than the adult unmarried woman. Her full legal capacity is even particularly emphasized in § 1399 (1) BGB 1896: “The consent of the man is not required for legal transactions through which the woman undertakes to perform.” 7 For the independent operation of a commercial business by the wife gave there is a special regulation in § 1405 BGB 1896. According to this, the husband's consent to the business as such was required, and consent to ongoing business was then dispensable; if "the woman goes about the business with the knowledge and without objection of the man", this was considered as consent. Employment and service contracts are binding transactions within the meaning of Section 1399 (1) BGB 1896. Service or employment relationships contractually entered into by a wife were therefore effective without the consent of the husband. However, the fathers of the BGB wanted to ensure that the woman would not be prevented from fulfilling her marital duties by performing her duties in her service or employment, and therefore gave the husband the right to terminate according to Section 1358 BGB 1896. However, this right of termination could not be exercised without any preconditions as it is occasionally presented today; Section 1358 (1) read until June 30, 1958: “If the woman has committed herself to a service to be provided by her personally, the man can terminate the legal relationship without observing a period of notice if, upon his request, he the Guardianship Court has been authorized to do so. The guardianship court has to issue the authorization if it emerges that the work of the woman affects the marital interests. ”The husband could not simply send a letter of resignation to the employer or employer of his wife, but needed an authorizing decision of the guardianship court. Only when the guardianship court had come to the conclusion that the wife's “marital interests” were neglected due to her gainful employment, it had to grant authorization. This paragraph was deleted without replacement by the Equal Opportunities Act of June 18, 19578, which came into force on July 1, 1958. (Incidentally, the “house number” is still unoccupied to this day) Hildegard Krüger9 commented on this in the comment she co-published on the Equal Rights Act: “The GleichberG has deleted this provision, which authorized a man to terminate a woman's employment without to ask her. This provision has rightly been described as a degradation and humiliation of the woman (Dölle MDR 4 According to the legal marital property status of so-called administration and usufruct, which is by marriage contract, valid until March 31, 1953 (cf. Art. 117, Paragraph 1 of the Basic Law) 5 Further provisions on the conditional property in §§ 1368-1371 BGB 1896. 6 According to § 1303, women aged 16 and over required the consent of their legal representative in order to enter into marriage ff. are formulated in a gender-neutral way, although they only concerned women, since according to § 1303 only men of legal age were of legal age, i.e. either at least 21 years old according to § 2 or at least 18 years old according to §§ 3-5 and declared to be of legal age Fn. According to BGB 1896. 7 Section 1399 (2) BGB 1896 relates to business related to the property brought in, which in the case of the statutory matrimonial property regime is fundamentally withdrawn from the wife's power of disposal gen were. 8 Federal Law Gazette 1957 I 609; Exact designation above fn. 1. 9 Born in 1909, died in 1994. See the entry in the women's biographies on the website of the Free and Hanseatic City of Hamburg at https://www.hamburg.de/clp/frauenbiografiennamensregister/clp1/hamburgde / onepage. php? BIOID = 4330 & qR = K & PR = 1 (17.2.2020). There has also been a Wikipedia entry since 2018: https: // de.wikipedia.org/wiki/Hildegard_Kr%C3%BCger (February 17, 2020). Unfortunately, there is no entry in the legal encyclopedia published by the djb and written by Marion Röwekamp. However, she is mentioned in the lecture by Gertrud Hofmann, 50 years of djb - history and stories, djbZ 4/98, pp. 16-19, including the sentence: “Ms. Krüger has been like many other colleagues in the Lawyers' Association over the years and decades lost. ”Section 1399 (1) BGB in the version from 1.1.1900:“ The consent of the man is not required for legal transactions through which the woman undertakes to perform. ”31djbZ 1/2020 Konstanze Plett consent of the husband on the employment of the wife | Reports and Opinions 50, 391; SPD draft justification for § 1358 p. 53). She is doing very badly. In practice, the provision has often served the purpose of offending the woman ... ”10 It remains to be noted at this point: 1. At no time since the entry into force of the BGB has the wife been required to conclude a legally effective contract on external dependent employment , her husband's consent. 2. The husband's right to terminate such employment relationships without notice was dependent on an authorization from the Guardianship Court, which was only granted if the woman's activity impaired marital interests. This provision was no longer applicable with effect from July 1, 1958. 2. Further considerations How is it then that the rumor persists that wives were dependent on their husbands for taking up employment until 1977? It was undisputed that Section 1358 of the German Civil Code (BGB) in 1896 had to be dropped under the application of Article 3 (2) of the Basic Law (GG). The government draft from the 1st legislative period already stated: “The man's right to terminate a woman's employment is incompatible with the principle of equal rights for men and women; it contradicts the self-responsibility of women as equal partners in life. ”11 As is well known, this draft law was no longer dealt with in the Bundestag within the deadline set by Article 117.1 of the Basic Law, but the GleichberG could only be promulgated on June 18, 1957. In it, the gender-specific division of labor was reformulated according to the “principle: man outside work, woman inside work” 12. According to the original section 1356 (1), the wife was "entitled and obliged to manage the common household". According to the government draft from the end of 1952, this sentence should be dispensed with as dispensable.13 A good year later, however, in the government draft introduced in early 1954, it then said that it was “expedient to expressly define this particularly important right and this essential task of women in the law” 14 . The common household, which the wife was responsible for managing, became the household, which she “runs under her own responsibility”. Section 1356 (1) also received a “new legal formulation” 15 sentence 2: “She [the wife] is entitled to be gainfully employed, as long as this is compatible with her duties in marriage and family.” In the government draft of 1952, this is to read following the passage already quoted16 - and the word “in principle” already heralds the restriction: “In principle, women must have the right to be gainfully employed. However, it follows from her obligation to marital cohabitation (§ 1353 BGB) that her main task is to fulfill her duties as a housewife and mother. She must run the household and devote herself to raising the children. The woman’s fulfillment of these main tasks must not be jeopardized by the woman’s occupation outside the home. ”17 Thus, the condition under which the Guardianship Court had to authorize a husband to terminate his wife’s employment from 1900 to mid-1958 is from mid-1958 again until mid-1977 as a restriction of the wife's right to self-determination about the use of her labor. On the enforcement of § 1356 BGB 1957 Krüger comments dryly: “Legal remedy for the obligations according to paragraphs 1 and 2: manufacturing, if necessary divorce proceedings.” 18 She sees this - which it is de lege lata - as a matter solely between the Spouses; the actual or presumptive employer or employer are left out. Regarding the employment of a wife outside the home, Krüger reads: “The decision is made by the woman herself (Maßfeller DNotZ 57, 346). Completely absurd Finke MDR 57, 451, who assumes that the man's consent to the work of the woman is required, and who also considers the man to be entitled to revoke this consent in the event of changed circumstances. ”19 On the other hand, the assumption that a Legal opinion published in a well-known legal journal is shared by other lawyers, even if the opinion is inferior. In addition, the man's right to terminate according to Section 1358 (2) BGB 1896 was excluded if the man had consented to his wife's taking up work or if the consent was replaced by the guardianship court.20 Such a regulation made it possible for potential employers or employers It makes sense to secure the consent of the husband in order to be protected against unexpected dismissal. 3802 P. 46. 12 Gustav Boehmer, The equal rights of women in marriage law, in: Ders., On the development and reform of German family and inheritance law, Tübingen: Mohr, 1970, p. 183 (= MDR 1950, 386-393). 13 Bundestag printed paper 1/3802. P. 46. 14 Bundestag printed paper 2/224, p. 29. 15 Krüger (fn. 10), p. 246. 16 As fn. 11. 17 So in literal takeover Bundestag printed paper 2/224, p. 29. - That from § 1353 the husband's duty to help in the household follows, is often overlooked; cf. Boehmer (fn. 12), p. 185. 18 Krüger (fn. 10), p. 256. 19 Krüger (fn. 10), p. 252. 20 Section 1358 (2) and (3) BGB 1896 had the following Wording: “The right of termination is excluded if the man has consented to the obligation or if his consent has been replaced by the guardianship court at the request of the woman. The guardianship court can replace consent if the man is prevented from making a statement due to illness or absence and there is danger associated with the delay, or if the refusal to consent is an abuse of his rights. As long as the domestic community is abolished, the man does not have the right to terminate. ”“ The consent and termination cannot be given by a representative of the man; if the man is limited in his legal capacity, he does not need the consent of his legal representative. ”djbZ 1/202032 Reports and statements | Julia Gokel, On the Victimization of Pregnant Workers Prof. Dr. Julia Gokel, LL.M.djb member, professor at the SRH Hochschule Heidelberg The Hakelbracht case, which came to the ECJ in a preliminary ruling request in the summer of 2019 (see ruling of June 20, 2019 - case C-404/18), shows once again that the Discrimination against women on the basis of pregnancy in the world of work is a reality.1 It can be assumed that the cases that come before the labor courts or even before the ECJ are only the tip of the iceberg. Many pregnant employees shy away from an offensive legal dispute with the employer, especially since a process - for example in the context of a dismissal protection suit - not only costs time and money, but also requires a certain "thick-skinned" - resources that pregnant women usually lack. It is not without reason that the Maternity Protection Act (MuSchG), which came into force in 1952, seeks to protect the health of working (expectant) mothers from the additional emotional stress caused by a dismissal process. Section 17, Paragraph 1, No. 1 of the MuSchG regulates the fact that the employer-side dismissal of an employee during pregnancy and until the end of the maternity protection period after childbirth is “inadmissible”. The prerequisite is that the employer has positive knowledge of the pregnancy or is informed of this within two weeks of receiving the notice of termination. The pregnant employee is responsible for this. 3 Paragraph 17 of the MuSchG contains an absolute ban on dismissal, 4 which applies to both ordinary and extraordinary dismissals. The employee cannot waive the mandatory prohibition in advance.5 Section 17 of the MuSchG is not only intended to protect the pregnant employee from the emotional stress of labor court proceedings, but also to secure her job and economic livelihood for the duration of maternity leave maternity protection is called the core of the MuSchG, because it implements the constitutional protection mandate of the state from Article 6, Paragraph 4 of the Basic Law. In view of the legal consequences, it is all the more unsatisfactory that Section 17 (1) MuSchG is indeed a prohibition law in the sense of S. d. § 134 BGB acts, but this (which many women and some legal advisors do not know!) Does not ipso iure lead to the ineffectiveness of the notice given to a pregnant woman. In order for the termination to be found to be null and void, the employee must instead assert its legal ineffectiveness in court, because the actually inadmissible termination can take effect ex tunc according to Section 4 (1) sentence 1 KSchG according to Section 7 (1) KSchG. To prevent this, the pregnant worker has to be within the short period of just three weeks7 with a DOI: 10.5771 / 1866-377X-2020-1-32 to victimize * pregnant workers. And once such a practice has developed, it takes a long time to change again. Perhaps this practice was also a consequence of the case of the actress Hermine Körner, which became known through legal publications, who with the help of § 1358 BGB 1896 broke away from an unwanted engagement, to which she was personally bound, commented by Krüger: “In many cases the man will have used this provision with the consent of the woman because both spouses wanted to free the woman from an employment relationship that had become uncomfortable for her. The case of the actress Hermine Körner was dealt with by Opet in DJZ 15, 1215 and by the KG in OLG 33, 338. ”21 I rather doubt whether there were really many cases of this kind, but about the practice that employers are also looking for In 1957, they secured their husband's consent, which was never envisaged de lega lata, and although there was no longer the right to terminate, I have been told many times. Overall, the question can therefore also be read as an example of the divergence between written law (law on the books) and legal reality (law in action). * The term is not used here i. S. of Art. 24 RL 2006/54 / EG as protection against victimization in favor of third parties (cf. from national law § 16 AGG), but refers only to pregnant women as victims of discrimination by the employer. 1 See the note from Porsche in ZESAR 11./12.19, p. 512 (514 f.). 2 See already BAG, judgment of April 26, 1956 - GS 1/56. 3 In the process, the employee may have to demonstrate and prove that she informed the employer of her pregnancy in good time after receiving the notice of termination. 4 According to Paragraph 2, this is exceptionally subject to permission for special cases if the employee has previously obtained official approval. 5 However, the employee can terminate the contract at any time. 6 See Scientific Services of the German Bundestag: Protection against dismissal within the framework of maternity protection in Germany, status April 23, 2015, WD 6 - 3000 - 065/15, p December 24th, 2003 it was determined that in the interest of a quick clarification of the question of whether a dismissal has ended the employment relationship or not, a uniform period of action should apply in all cases of legal ineffectiveness of an employer dismissal. Previously, no deadline was set for the assertion of the ineffectiveness of a termination “for other reasons” (see BT-Drs. 15/1204, p. 10). 21 Krüger (fn. 10), p. 27.