Would you marry a handicapped partner

Marriage law and care

Marriage law and care

A reservation of consent (§ 1903 BGB) is not permitted for marriages. This means that people who are under care can in principle marry (unlike in the previous guardianship law) without having to ask the carer.

Legal development towards the ability to marry

In the era before the custody law came into force, incapacitated people were not entitled to marry if they were incapacitated due to mental illness. This was called immaturity. The other reasons for incapacitation (mental weakness, drinking and drug addiction as well as waste) led to so-called limited marriage, i.e. marriage was only possible with the consent of the guardian.

1992 was to end this restriction of personal freedom of development. The Care Act also changed the Marriage Act; From this point on, the focus was only on the legal capacity; specifically referred to this question since then unofficially referred to as marital legal capacity. Reservations of consent were expressly not allowed to refer to the marriage.

On July 1, 1998, the Law on Marriage Law brought new changes. With this law, the right to marry was returned to the BGB. Since 1938, when marriage law was removed from the Civil Code under the Nuremberg Laws under the Nazi regime, all marriage law (with the exception of the division of apartments and household items) has been part of the Civil Code again for the first time. The divorce law and parts of the divorce law had already been reduced in 1976/77 within the framework of the 1st marriage law reform law.

With the Marriage Law Act, however, marriage was not only returned to the BGB, changes were also made to the content. Of particular interest to the supervisor: while the marriage of an incapacitated person previously resulted in the nullity of the marriage (Section 18 EheG), the new law only provides for a possibility of annulment upon application by the family court.

After lengthy controversial discussions, with the Civil Partnership Act, which came into force on August 1, 2001, same-sex relationships were also cast into a legal framework that replicates relationships under matrimonial law in many places. Hence the change in Section 1903 of the German Civil Code (BGB), which now also does not allow a reservation of consent for the establishment of a civil partnership.

Involvement of carers in marriages

Nonetheless, caregivers can be involved in marriage, matrimonial property law, and divorce in different ways. This requires a suitable group of tasks on the part of the supervisor. Since marriage (as well as civil partnerships) is a family law construct, the task areas of residence determination, health care and property management, which are common in many places, are generally not suitable for giving the guardian a power of representation in matrimonial matters. At most in the area of ​​matrimonial property law, where the property relations of the spouses are at stake, including the compensation of gains and pensions as well as the division of household items, the property management task group may be suitable.

Please note § 1304 BGB:

Section 1304 Incapacity Anyone who is incapacitated cannot enter into a marriage.

Marital legal capacity

According to § 1304 BGB, as previously according to § 2 EheG, a marriage cannot enter into a person who is incapable of doing business, that is, who suffers from a pathological disorder of mental activity within the meaning of § 104 No. 2 BGB. The legal capacity for the marriage is under consideration of the constitutionally guaranteed freedom of marriage in Article 6, Paragraph 1 of the Basic Law (cf. BVerfGE 31, 58/68 = FamRZ 1971, 414 and BVerfGE 36, 146/161 = StAZ 1973, 90/93 = NJW 1974, 545 = FamRZ 1974, 122 with note from Bosch; BayObLGZ 1982, 179/180 = FamRZ 1982, 603 ff. With further details) to be assessed as marital legal capacity (cf. Böhmer StAZ 1992, 65/67). This is a case of partial legal capacity for which a constitutional interpretation of the provision is permissible (BVerfG, decision of December 18, 2002 - 1 BvL 14/02, FamRZ 2003, 359 = NJW 2003, 1382 = NVwZ 2003, 862) .

The marital legal capacity is, like the testability i. S. of § 2229 Abs. 4 BGB, about a sub-case of the legal capacity, according to which it depends on whether the fiancé is able to understand the nature of the marriage and to that extent to make a free will decision without the abilities understanding must be decisive (see BayObLG, aa O .; LG Frankfurt / Main StAZ 1966, 260/261 and BGH NJW 1970, 1680/1681 = MDR 1971, 405 in the event of divorce). It has nothing to do with whether the everyday life associated with marriage can be managed (Enders BtE 1996/97, 97).

Even a significant intellectual disability does not have to exclude the necessary ability to understand the nature of marriage and the free will to enter into marriage, even if this ability to understand is lacking for other legal transactions (see BayObLGZ 1996, No. 24 = BtPrax 1997, 111 = FamRZ 1997, 294 = NJWE-FER 1997, 1 = FGPrax 1996, 143 = StAZ 1996, 229 = BtE 1996/97, 95, BayObLG BtPrax 2003, 78 = FamRZ 2003, 373 = StAZ 2003, 78 = FGPrax 2003, 32; LG Munich I StAZ 1994, 258 = BtE 1992/93, 108 [Ls]; LG Osnabrück FPR 2002, 90; AG Kaiserslautern RdLH 3/1995, 28; AG Rottweil FamRZ 1990, 626; Böhmer StAZ 1992, 65/67; Finger StAZ 1996, 225 / 228; Hellmann BtPrax 1997, 173/174). However, if a pathological disturbance of mental activity precludes the free determination of will, then a case of incapacity for marriage is i. S. of § 1304 BGB i. V with § 104 No. 2 BGB.

The BayObLG stated that the marriage is a legal transaction, the content of which is shaped much more than other typical legal transactions by ideas firmly anchored in society. It should therefore be checked in each individual case whether the impairment of intellectual activity also extends to marriage and whether the fiancé has the necessary insight and is able to make free will decisions, even if this insight is lacking for other legal transactions. It is consistent with established case law that the legal capacity can be limited to a certain, objectively delimited group of matters (cf. Palandt, BGB, § 104 Rz. 6). This is particularly important when assessing the ability to enter into a marriage because it is not so much the abilities of the intellect that are decisive here, but the insight into the nature of marriage and the freedom of the will to enter into a marriage (BayObLGZ 1996, No. 24 = BtPrax 1997 , 111 = FamRZ 1997, 294 = NJWE-FER 1997, 1 = StAZ 1996, 229 = FGPrax 1996, 143 = BtE 1996/97, 95,).

A reservation of consent on the part of the supervisor can expressly not extend to entering into a marriage (Section 1903, Paragraph 2 of the German Civil Code, cf. on this point, on Section 1903, margin no. 48). Thus, since the BtG came into force on 1.1.1992 (except in the case of the underage of a fiancé, cf. § 1303), the consent of the legal representative of a person willing to marry is no longer necessary. In the previous law, in the event of incapacitation due to mental weakness, drinking or drug addiction or waste, marriage was only permitted with the consent of the guardian. This was referred to as limited marriage (Section 3 Paragraph 1 EheG in the version up to December 31, 1991).

Wording of case law:

LG Munich I, decision of July 21, 1997, 13 T 7432/97:

Regarding the prerequisites for marital legal capacity and the assessment of an expert opinion obtained on this.

Examination obligation of the registrar

The registrar has the duty to ex officio before the marriage to check the marital legal capacity according to § 1304 BGB, § 5 PStV (see Böhmer StAZ 1992, 66 ff.). He must refrain from participating in the marriage if the marriage could obviously be annulled in accordance with Section 1314 (2) of the German Civil Code (BGB).

According to § 308 FamFG, the guardianship court can inform the registry office of the existence of a guardianship if it can be assumed that a legally incompetent guardian wants to marry and the partner willing to marry would be seriously endangered (Bt-Drs. 11/4528, p. 182; Damrau / Zimmermann, § 69k FGG margin no. 6). Even without such a notification, the registrar is entitled to inspect the care files of the care court according to § 12 FamFG (Böhmer StAZ 1990, 213/216; Soergel / Zimmermann § 1903 Rz 21).

Bienwald considers it permissible for the supervisor to approach the registrar in the event of an intended marriage of the person they are being cared for if he fears that the person being cared for is at risk of becoming the victim of an egoistic marriage concern (e.g. fictitious marriage to obtain a residence permit or German citizenship). Here it is justifiable to point out the existence of the care and one's own doubts about the marital legal capacity to the registrar (Bienwald, BtR, 3rd edition, § 1896 p. 150).

The appointment of a supervisor alone is not an indication of the legal incapacity of the person being looked after (cf. § 149a of the service instructions for registrars as well as AG Bremen StAZ 1992, 272). The marriage is very personal, § 1311 BGB, a substitute for the supervisor is not permitted. The supervisor, however, is entitled to submit an application in accordance with Section 49 (1) PStG and to lodge legal remedies in this procedure, provided that he has a corresponding range of tasks (as explicitly BayObLG BtPrax 2003, 78 = FamRZ 2003, 373 = StAZ 2003, 78 = FGPrax 2003 32).

Judicial decision

If the registrar refuses to marry, a court decision is given against this in accordance with Section 49 (1) PStG. The registrar himself can also appeal to the court (Section 49 (2) PStG). The competent civil status court is the local court at the seat of the regional court. The local jurisdiction is determined by the seat of the registrar who issued the contested ruling or submitted the matter to the court for decision.

The provisions of the FamFG apply to the procedure. The court is responsible for the examination within the framework of the official investigation (§ 26 FamFG). As a rule, an expert opinion will have to be obtained (LG Munich StAZ 1994, 258), which may have to be critically assessed by the court (BayObLGZ 1981, 306/308 = FamRZ 1982, 199; BayObLGZ 1986, 338/340 = FamRZ 1986, 1248 [LS.]; BayObLG, FamRZ 1993, 1489 = BtPrax 1993, 208, 209). A personal hearing of those involved is essential in any case (BayObLG BtPrax 2003, 78 = FamRZ 2003, 373 = StAZ 2003, 78 = FGPrax 2003, 32).

A temporary appeal is made against a court decision by which the registrar is required to enter into the marriage (cf. § 51 PStG, § 63 FamFG).

Annulability of the marriage

A marriage concluded in violation of Section 1304 of the German Civil Code (BGB) can be annulled by a decision of the family court. A state of unconsciousness or a temporary disturbance of mental activity during the marriage also justifies the annulment of the marriage (Section 1314, Paragraphs 1 and 2, No. 1). The possibility of annulment of a marriage differs from the earlier legal consequence of marriage nullity, which occurred up to June 30, 1998 according to § 18 EheG in the event of the incapacity of a married person (Palandt / Diederichsen § 1304 margin no. 4).

According to Section 1317 of the German Civil Code (BGB), the application for annulment of the marriage can be submitted to the family court within one year of the circumstances justifying the annulment becoming known. Annulment of the marriage cannot take place if the spouse has indicated that he wishes to continue the marriage after the loss of legal capacity, unconsciousness or temporary mental disorder (confirmation, Section 1315, Paragraph 1, No. 2 and 3).

The application for a legally incapable spouse can only be made by his or her legal representative (Section 1316 (2) BGB). A legally competent supervisor (also with a stipulated reservation of consent) can only submit the application himself. In the event of a reservation of consent, the supervisor must agree to the application; For this purpose, the supervisor (as well as for the application for divorce) needs the approval of the supervisory court (Section 125 (2) FamFG).

Also when deciding on the application for mentor. Approval as well as the marriage annulment procedure itself will not depend on the general legal capacity, but on the above-mentioned marital legal capacity. For the legal consequences of annulment see § 1318 BGB.


Higher Regional Court Brandenburg, decision of 07/07/2010, 13 UF 55/09, FamRZ 2011, 216 = JurionRS 2010, 19594:

On the basic right to marry also for the seriously ill. In the present proceedings, the application for annulment of the marriage was rejected by the Higher Regional Court despite the presence of so-called Korsakov's syndrome in the husband at the time of the marriage.

Further powers of the supervisor under marital law


The marriage itself is not justifiable as a highly personal declaration of intent by the spouse (§ 1310 BGB). Representation by the supervisor is forbidden, the same applies to other legal transactions on the occasion of the marriage, e.g. B. the determination of the married name (§ 1355 para. 1) or the agreement on housekeeping (§ 1356 para. 1; cf. Soergel / Zimmermann § 1903 margin no.22).

Marriage settlement

When concluding a marriage contract, the status of the person being cared for is decisive; if he is legally competent and is not subject to the reservation of consent with regard to property law matters, only he can conclude the contract himself (Section 1411, Paragraph 1, Clause 4).

If a reservation of consent is arranged, no representation by the supervisor is permitted; the very personal conclusion of the marriage contract (§ 1410) is then only permitted with the consent of the supervisor; this in turn is required by the fraudster. Approval if the equalization of gains (Sections 1371 ff.) Is excluded or restricted or if community of property (Sections 1415 ff.) Is to be agreed or canceled (Section 1411, Paragraph 1, Clause 3).

The custodian is only permitted to conclude a marriage contract if the custodian is incapable of doing business; on the basis of the above, this can only apply to cases in which the marriage contract is not to be concluded at the same time as the marriage, but the spouse's incapacity to act later (Section 1411 (2)). Here, too, it is Approval required; Community of property cannot be agreed or canceled by the supervisor. For reasons of legal certainty, it is recommended in the commentary literature that the marriage contract be signed by the carer and the carer with fraudulent Approval is closed (Damrau / Zimmermann, § 1902 Rz 8, Neuhausen RNotZ 2003, 157/167).


Higher Regional Court of Brandenburg, decision of 07.03.2017, 10 UF 54/15, FamRZ 2017, 1747

The marriage legal capacity and legal capacity of the spouses when concluding a marriage contract can be assumed even in the case of a slight intellectual disability, if the court is convinced that they have grasped the significance of the marriage and the agreements made (here: affirmed).

Community of property

In the case of community of property, if the other spouse dies, the guardian is entitled to reject the continued community of property (Section 1484 (2) BGB) or to cancel (Section 1492 (3)). Likewise, he can declare that a descendant who is under care will renounce the continuation of the community of property after the death of one of the parents (Section 1491 (3)). For all declarations, the fraudulent. Approval required. The focus here is on asset management. The case of the legally competent but subject to consent is not covered by the wording of the law. An analogous application of the fraudulent The requirement to obtain approval for the supervisor's consent to the person being supervised is appropriate (Damrau / Zimmermann § 1902 margin no. 9).


The legally competent custodian can only apply for a divorce himself, this also applies to a reservation of consent (Section 125 (1) FamFG, also Erman / Holzhauer Section 1896 margin no. 59). According to another opinion, the supervisor can also take over the process of litigation in the case of legally competent custodians (Section 53 ZPO) and the person under custody is not entitled to bring an action with the reservation of consent (Section 52 ZPO; see Damrau / Zimmermann Section 1902 margin no.26). The latter represents the prevailing opinion (Baumbach-Lauterbach, § 607 ZPO margin number 1; Roth BtPrax 2007, 100/102 with further references).

The application for divorce for a legally incompetent custodian must be submitted by the custodian (BGH NJW 2002, 671; OLG Frankfurt / Main ZEV 2002, 514; OLG Celle, NJW 2013, 2912; Roth aaO p. 102). Opposing views from the literature (Kern; Festschrift f. Bienwald, p. 137/142), according to which the application for divorce is a highly personal matter, are not shared.

In the area of ​​responsibility for the divorce (and also annulment) procedure, the focus is not on the area of ​​property management, since marriage is a family law relationship; If the supervisor only had this scope of duties, he would at most be involved in divorce-related matters (compensation of profits, compensation of benefits, distribution of household items), cf. § 621, § 623 ZPO. A separate group of tasks is required for the divorce proceedings itself, e.g. representation in marriage-law proceedings, task group for all matters (MünchKomm / Schwab § 1903 BGB margin number 31; Musielak / Borth, § 607 ZPO margin number 6; OLG Zweibrücken FamRZ 1999, 27/28; already on the old law of the frailty custody LG Mannheim FamRZ 1957, 395). Again OLG Zweibrücken, decision of April 12, 2011, 2 WF 166/10; FamFR 2011, 312 = BeckRS 2011, 14629: The appointment of a supervisor with the sphere of activity "Representation in official matters" does not authorize him to represent the person concerned in divorce proceedings.

In order for the supervisor to file the application for divorce, the supervisory court approval in accordance with Section 125 (2) FamFG is required. It can also be done retrospectively (OLG Hamm FamRZ 1990, 166/167; Roth loc. Cit. P. 102). The criteria of § 1304 BGB are decisive for the assessment of the legal capacity (BGH NJW 1970, 1680/1681 = MDR 1971, 405).

The supervisory court approval of the divorce petition filed by a guardian for a spouse incapable of litigation only affects the legal sphere of this spouse. The authorization only restores the spouse's right - impaired by the incapacity to take legal action - to bring about its dissolution in the event of a failed marriage.

The other spouse is therefore not authorized to appeal against the approval in their own name. He can only assert his objections to the application for divorce in divorce proceedings (KG BtPrax 2006, 38; previously LG Berlin BtPrax 1999, 204; critical Damrau / Zimmermann § 1902 BGB margin no.26). The guardian is not authorized to bring an action for the establishment of marital life.

The assignment of a lawyer according to § 138 FamFG in the case of a legally incapable person in divorce proceedings does not replace the need to appoint a supervisor (Bienwald § 1896 p. 152). Because of the contract-like relationship between the assigned lawyer and the party, this lawyer cannot be considered as a supervisor (Bienwald § 1896 p. 152, see also § 45 BRAO).

The supervisor cannot act on behalf of the supervised person in the divorce proceedings if the personal hearing of the supervised person (§ 160 FamFG) or his / her personal participation (§ 17 SGB VIII - Child and Youth Welfare) is planned or essential. Furthermore, the representative participation in mediation does not appear to be possible (Bienwald, § 1896, p. 150).

Regarding the requirements for divorce, it should be noted that the marriage can be divorced if it has failed in accordance with Section 1565, Paragraph 1, Clause 1 of the German Civil Code (BGB). From the fact that the person being cared for (due to illness or disability) lives in a home, it cannot be concluded that the marital partnership no longer exists (Kern, op. Cit., P. 142).

This also applies if the person being cared for no longer has any understanding of the marriage as a result of senile dementia, but the other spouse wants to maintain the marital union. Because from the basic possibility of a spouse to obtain the divorce of a failed marriage even if he has lost all understanding of the marriage and its failure due to a mental handicap, it cannot be inferred conversely that the marriage of the mentally handicapped spouse - as it were "automatically" - has failed if only because he has lost all understanding of marriage due to his disability and is therefore unable to express his own marital feelings. (BGH NJW 2002, 671, see below). With the legal force of the divorce or decision to annul the marriage, health insurance cover that was previously guaranteed within the framework of family insurance as co-insured with the spouse ends. The supervisor with the health care task group has the duty to ensure health insurance protection for the person being cared for (BSG NJW 2002, 2413 = FamRZ 2002, 1471, cf. also BdB aspects 41/02, p. 18). The application for voluntary continued insurance according to § 9 SGB V can only be made within 3 months after the divorce or annulment decision becomes final.

Further case law:

Federal Court of Justice, judgment of 07.11.2001, XII ZR 247/00, BGHReport 2002,197 = BGHZ 149, 140 = FamRZ 2002, 316 = FPR 2002,143 = FuR 2002,218 = JR 2002,455 (with note Rauscher p. 457) = JurionRS 2001, 20151 = JuS 2002,613 = JZ 2002, 710 (with note Muscheler = Life & Law 2002, 227 = MDR 2002, 395 = NJW 2002, 671 = NJW-RR 2002, 577 (Ls.):

On the question of marriage failure due to mental illness in one of the spouses. A mentally handicapped spouse cannot be denied an appeal to the failure of his marriage simply because, as a result of his handicap, he has lost all understanding of the marriage and thus also of its failure. If such a spouse were to be held on to a failed marriage because of their mental state, although their divorce - according to the conviction of the Guardianship Court also obtained in the approval procedure (Section 607 II sentence 2 half-sentence 2 ZPO) - is in their well-understood interest, this would be the special need for protection Spouses subvert.

OLG Zweibrücken, decision of April 12, 2011, 2 WF 166/10; FamFR 2011, 312 with note. Zimmermann = BeckRS 2011, 14629 = FamRZ 2011, 1814:

The appointment of a supervisor with the sphere of activity "representation in official affairs" does not authorize him to represent the person concerned in the divorce proceedings.

OLG Naumburg, October 13, 2011 - 3 UF 157/08, BeckRS 2011, 27393 = FamRZ 2012, 1316:

In the event of a separation between the applicant and the spouse incapable of litigation originally due to illness, the will to separate must be positively determined for the existence of the separated life. The application for approval made by an authorized representative in accordance with Section 51 (3) ZPO according to Section 607 (2) ZPO (now Section 125 (2) FamFG) can also be approved by the supervisory court.

Higher Regional Court Brandenburg, decision of December 20, 2011, 10 UF 217/10, BtPrax 2012, 73 = FamRZ 2012, 1166 = JurionRS 2011, 31271:

For the effective authorization of a lawyer in divorce proceedings, the supervisor needs the task group "Representation in divorce proceedings". The appointment as a supervisor with the task of "Representation before authorities and courts" only serves to clarify the supervisor's authorization to represent in the context of a task that has been assigned at the same time and is therefore not sufficient on its own.

OLG Celle, decision of July 11, 2013, 6 W 106/13, BtPrax 2013, 214 = FamRZ 2014, 156 = JurionRS 2013, 42187 = NJW 2013, 2912 = ZEV 2013, 7:

The task area "legal matters" entitles the supervisor to represent the supervised person in divorce proceedings, at least if the supervised person was already incapable of doing business when the court appointed the supervisor (distinction from OLG Zweibrücken FamRZ 2011, 1814 and OLG Brandenburg FamRZ 2012, 1166).

OLG Hamm, decision of August 16, 2013, 3 UF 43/13, BtPrax 2013, 261 = FamFR 2013, 522 = FamRZ 2013, 1889 = FF 2014, 77 = JurionRS 2013, 46184 = MDR 2013, 15 = NJW 2014, 158 mAnm Kogel NJW 2014, 138 = PaPfleReQ 2013, 94 = SuP 2013, 718:

  1. Regarding the prerequisites for an effective authorization of the authorized representative of a spouse suffering from dementia by their legal guardian for an effective application for divorce in accordance with §§ 125 Paragraph 2 Sentence 2, 287 Paragraph 1 FamFG, 1564 Sentence 1 BGB.
  2. According to Sections 1565, 1566, 1567 BGB, a unilateral breakdown of the marriage, which enables the family court to pronounce a divorce, can in any case be determined if the spouses have undisputedly been living spatially separated from each other for more than a year and the hearing of the applicant suffering from dementia continues Section 128 of the FamFG and the other results of the taking of evidence allow the conclusion that at the time of the separation or at a later point in time he still declared the sufficiently certain natural will to separate and divorce as well as the rejection of the resumption of the marital partnership.
  3. The fact that the applicant suffering from dementia, on the other hand, no longer has a natural will to separate and divorce can no longer be determined at the end of the last oral hearing, is irrelevant for the decision of the divorce. If the applicant spouse is no longer able to grasp the essence of a marriage and a divorce due to advanced dementia at this point in time, he has reached a state of extreme remoteness in which the marriage of the spouses who have been separated for more than a year is divisible.

KG Berlin decision of 02/12/2014.25 WF 150/13

A supervisor appointed with the task of "property management", "housing matters" and "representation before authorities and courts" is not authorized to issue power of attorney to conduct divorce proceedings. According to Section 114 (5) of the FamFG, the legal representative requires a special power of attorney that relates specifically to the specific matrimonial matter. There is no such thing. The power of attorney issued on April 29, 2013 is not sufficient. The supervisor was not authorized to issue such a power of attorney for divorce proceedings on behalf of the respondent. As evidenced by her supervisor card, she was assigned the task of "property care", "housing matters" and "representation before authorities and courts". However, the appointment to represent in divorce proceedings would have been necessary (see e.g. OLG Brandenburg FamRZ 2012, 1166; OLG Zweibrücken FamFR 2011, 312 = FamRZ 2011, 1814).

OLG Hamm, decision of May 15, 2014, 6 UF 125/13, BtPrax 2014, 240 = JurionRS 2014, 18186:

  1. A party involved in the proceedings is obliged to carefully research all documents relevant to the decision, and even slight negligence precludes the admissibility of a later restitution action. The party involved in the proceedings is also responsible for the fault of his authorized representative and / or his legal guardian.
  2. If neither the legal representative nor the legal guardian of the mentally ill legal representative are involved in the (initial) proceedings to compensate for the gain to submit all documents on the initial and final assets, then this can justify a fault with the result that a later restitution application is inadmissible.

Civil partnership

According to the LPartG of February 16, 2001 (Federal Law Gazette I, p. 266), amended by the law of December 11, 2001 (Federal Law Gazette I, p. 3513), direct application of Section 1304 of the German Civil Code (BGB) is not provided. However, the sense of same-sex civil partnership (§ 2 LPartG) makes it sensible to apply the provisions on marital legal capacity analogously.

When establishing a civil partnership (§ 1 Paragraph 1 LPartG) and choosing a name (§ 3 LPartG), the supervisor is not allowed to act as a substitute. The reservation of consent may also not extend to the establishment of a civil partnership (Section 1903 (2) in the version of the LPartG).

When concluding a civil partnership contract (Section 7 LPartG), the analogous application of Section 1411 BGB and thus, if necessary, participation in childcare according to Paragraph 2 is provided.

In accordance with Section 661 (2) ZPO, the civil law provisions of the ZPO apply to the procedure for terminating the civil partnership (Section 270 FamFG since September 1, 2009). Therefore, the involvement of the supervisor is to be seen in accordance with Section 607 (2) ZPO. In addition, Paragraph 15 of the LPartG stipulated maximum personality for certain declarations in the context of the annulment proceedings. However, these passages were deleted on January 1, 2005, as an adjustment to the marriage law was intended (Bt-Drs. 15/3445). The decision of the Cologne Higher Regional Court below, which did not provide for representation, became obsolete as a result of the change in the law on 01.01.2005.


OLG Cologne, decision of February 11, 2004, 16 Wx 16/04, FamRB 2004, 225 = FamRZ 2004, 1724 = FPR 2005, 309 = JurBüro 2004, 625 = JurionRS 2004, 16876 = JWO-FamR 2004, 292 = MDR 2004, R9 = OLGR Cologne 2004, 204 = StAZ 2004, 231:

The declaration that they do not want to continue the civil partnership can only be made personally to the court by the person being cared for. The law does not provide for representation by the supervisor.

See also

Marital status, reservation of consent


  • Böhmer: The examination of the general marital capacity with special consideration of the BtG; StAZ 1990, 213
  • Bornhofen: The reform of child law and the reorganization of marriage law in civil practice, StAZ 1997, 362
  • Deinert: The supervisor in marriage and civil partnership law; BtPrax 2005, 16
  • Finger: marriage of incapacitated persons; StAZ 1996, 225;
  • ders .: On the reorganization of marriage law; FuR 1996, 124
  • Fröschle: Legal support and the registry office. StAZ. 2015, 130
  • Hellmann: Overview of case law on selected material and procedural questions of care law; BtPrax 1997, 170
  • Heptinger: Innovations in marriage law, StAZ 1996, 257
  • Kern: Regarding the “Divorce Matters” task area in support; in: Sonnenfeld (Ed.): Non-everyday questions from everyday life in the care law, Gieseking-Verlag Bielefeld, 2006, ISBN 3769409930
  • Roth: marriage and care; BtPrax 2007, 100 (PDF)
  • Schäfer: for divorce for people with dementia; NZFam 2014, 676.
  • Schwab: The ability to marry and the new care law; in: Festschrift for K. Rebmann, Munich 1989, p. 685