Federal Constitutional Court - Press office -

Press release no. 41/2013 of 6 June 2013

Order of 7 May 2013 
2 BvR 909/06
2 BvR 1981/06
2 BvR 288/07

Exclusion of Registered Civil Partnerships from Income Splitting for
Spouses (“Ehegattensplitting”) Unconstitutional


The unequal treatment of registered civil partnerships and marriages 
regarding income splitting for spouses is unconstitutional. The 
corresponding provisions of the Income Tax Act violate the general right 
to equality before the law because there are no sufficiently weighty 
factual reasons for the unequal treatment. This is what the Second 
Senate of the Federal Constitutional Court decided in an order published 
today. The statutory framework has to be amended retroactively to the 
date the Civil Partnerships Act (Lebenspartnerschaftsgesetz) entered 
into force, 1 August 2001. During the transition period, the existing 
provisions on income splitting are also to be applied to registered 
civil partnerships. The decision was taken with 6:2 votes; Justice 
Landau and Justice Kessal-Wulf delivered a joint separate opinion. 

The Decision is Essentially Based on the Following Considerations: 

1. The Income Tax Act allows spouses the joint assessment to income tax, 
which results in what is known as the “splitting rate” (Splittingtarif, 
§§ 26, 26b, 32a sec. 5 Income Tax Act, Einkommensteuergesetz – EStG). 
Having entered into registered civil partnerships, the claimants applied 
to have their income taxes for 2001 and 2002 assessed jointly with their 
respective partners. The fiscal authorities, however, assessed these 
taxes separately. Legal actions against these assessments were 
unsuccessful before both the Fiscal Courts and the Federal Fiscal Court. 
The claimants now challenge the decisions of these courts with their 
constitutional complaints. 

2. §§ 26, 26b, 32a sec. 5 EStG are incompatible with Art. 3 sec. 1 of 
the Basic Law (Grundgesetz – GG) in so far as they do not allow 
registered civil partners – as opposed to married spouses – to file 
their income taxes jointly and thus benefit from income splitting. The 
Senate reversed the challenged decisions and remitted the proceedings 
for a new decision to the Federal Fiscal Court. 

a) The unequal treatment of married spouses and registered civil 
partners in the provisions on income splitting for spouses constitutes 
an indirect discrimination because of sexual orientation, which has to 
be measured against the right to equality before the law of Art. 3 sec. 
1 GG. Though the provision itself refers to marital status, it is 
virtually impossible to separate the choice between marriage and a 
registered civil partnership from one’s sexual orientation. 

In general, when groups of people are treated differently, the 
legislature is strictly bound to the requirements of the principle of 
proportionality. The requirements for justification are the stricter, 
the closer the personal characteristics come to the criteria of Art. 3 
sec. 3 GG, i.e. the greater the danger that the unequal treatment leads 
to the discrimination of a minority. This is the case when 
differentiating according to sexual orientation. 

b) The specific protection of marriage and family in Art. 6 sec. 1 GG 
itself cannot justify the unequal treatment of marriage and registered 
civil partnerships. The values enshrined in Art. 6 sec. 1 GG constitute 
a factual reason for differentiation that first and foremost allows to 
privilege marriage as compared to other ways of living together, which 
are characterised by a lesser measure of mutual commitments. If the 
privileged treatment of marriage includes that other ways of life that 
are structured in a similarly binding way are placed at a disadvantage, 
the mere reference to the requirement to protect the institution of 
marriage does not, however, justify such a differentiation. 

From the very beginning, the legislature has structured the civil 
partnership in a way comparable to marriage as a community of 
extensively shared responsibility, and it continuously reduced existing 
differences to marriage. Just like marriage, the civil partnership 
differs both from informal relationships between partners and from legal 
relationships between relatives. 

c) For these reasons, in addition to the mere reference to Art. 6 sec. 1 
GG, a sufficiently weighty factual reason is needed to justify the 
preferential treatment of marriage compared to civil partnerships. This 
reason must be measured and weighed against the respective object and 
purpose of the regulation. In the case of the splitting method, neither 
the provision’s aim, nor the legislature’s authority to categorise in 
the field of tax law, provides such a reason. 

aa) The aim of the splitting method, which was introduced in 1958, is to 
tax marriages with the same total income in the same way – independent 
of the distribution of income between the spouses. In doing so, the 
splitting method follows the underlying concept in the civil law of 
marriage as a union of economic production and consumption. The 
registered civil partnership, too, is structured as such a union. Since 
its introduction in 2001 it has been comparable to marriage regarding 
the fundamental taxation-related aspects: Both institutions include 
identical provisions which stipulate that either partner can act on 
behalf of the couple in transactions for everyday necessities, and that 
the partners’ rights to make dispositions over their personal property 
are limited. Furthermore, if civil partners did not want to enter into a 
civil partnership contract, they were obliged since 2001 to conclude 
what is known as an Ausgleichsgemeinschaft (a community in which merely 
the accrued gains are shared), for which the provisions on the marital 
Zugewinngemeinschaft applied accordingly. As of 1 January 2005, the 
Zugewinngemeinschaft explicitly became the default property regime for 
registered civil partnerships. Moreover, the adjustment of pension 
rights (Versorgungsausgleich) – introduced for divorces as recently as 
1977 – also applies to the dissolution of civil partnerships. 

Family-related intentions cannot justify the unequal treatment of 
marriages and registered civil partnerships with regard to the splitting 
method. According to the Income Tax Act, granting the splitting 
advantage depends solely on the existence of a marriage in which the 
partners do not permanently live apart. It is irrelevant whether there 
are children or whether the spouses might have children in the course of 
their marriage. 

The splitting method gives the spouses more leeway in the distribution 
of tasks within the marriage. It is thus regarded as a measure that is 
primarily aimed at families, in which one spouse does not, or only to a 
limited degree, have paid employment because of family responsibilities 
(i.e. due to raising children or taking care of family members). 
However, both the Civil Partnerships Act and marriage law recognise that 
the partners are free to choose their own personal and economic 
lifestyle, and they are based on the assumption that looking after the 
family and paid employment have equal value. There are no apparent 
differences in the situation of married spouses and civil partners that 
could justify such unequal treatment. First, not every marriage includes 
children, and not every marriage is aimed at having children. 
Furthermore, there are more and more civil partnerships in which 
children are raised; situations, in which one of the partners primarily 
cares for the children are quite possible and not completely unusual. 

bb) In view of the above, the privileged status of marriage as compared 
to civil partnership cannot be justified with the legislature’s right to 
categorise in the field of tax law. 

“Categorisation” means that one provision may regulate a number of 
situations that are essentially alike. In such cases, the provision’s 
legislative purpose must provide guidance regarding the factors that 
make these situations so alike. Categorisation requires that any ensuing 
hardships and injustices would be difficult to avoid, that they only 
apply to a relatively small number of people, and that the violation of 
the right to equality before the law is not very severe. The more 
constitutional requirements apart from Art. 3 sec. 1 GG apply to a given 
situation, the less leeway does the legislature have in designing the 
categories. The legislature does not have any leeway if the specific 
prohibitions of discrimination of Art. 3 sec. 2 and 3 GG are affected. 

The fact that both registered civil partnerships and marriages form 
unions of economic production and consumption would require the same tax 
treatment under such a categorisation. 

Neither can support for raising children be an argument for a 
category-based better treatment of marriages than registered civil 
partnerships. It is true that according to calculations of the Federal 
Ministry of Finance, 91 % of the total splitting volume comes from 
families with children who are, or used to be, relevant for tax 
calculation. However, since the financial benefit from income splitting 
is the greater, the larger the difference in income between the two 
partners is, registered civil partnerships will – just like marriages – 
especially benefit from splitting if they raise or have raised children 
and, as a consequence, one of the partners has no, or only limited, paid 
employment. The fact that children tend to be far less common in civil 
partnerships than in marriages is not a sufficient reason to limit the 
category-based application of the splitting method to married couples. 
Discriminating civil partnerships with regard to income splitting can be 
avoided without major problems for the legislature and administration. 
To ignore that children are also raised in civil partnerships would 
constitute an indirect discrimination that is specifically based on the 
partners’ sexual orientation. 

3. The legislature is required to eliminate the established violation of 
the Constitution retroactively to the time the institute of “civil 
partnership” was introduced, 1 August 2001. Because this can be 
accomplished in different ways, the Court can only issue a declaration 
of incompatibility of the provisions with the Constitution. In order to 
avoid insecurity about the legal situation until a new regulation enters 
into force, which the legislature must issue without delay, §§ 26, 26b, 
32a sec. 5 EStG shall remain in force with the following stipulation: 
From 1 August 2001 onwards, also registered civil partners whose tax 
assessments have not yet become final may demand under the conditions 
applying to married spouses that their taxes be assessed jointly and the 
splitting method be used. 

Separate Opinion of Justice Landau and Justice Kessal-Wulf: 

1. The Senate does not recognise that, according to the legislature’s 
explicit intention, the registered civil partnership was not designed as 
a union of economic production and consumption comparable to marriage 
until the Act to Revise the Civil Partnerships Act entered into force on 
1 January 2005. This alone already justifies the preferential treatment 
of marriage during the fiscal years 2001 and 2002 – the only years 
relevant for this case. There is thus no need to have recourse to Art. 6 
sec. 1 GG. 

a) The institution of marriage is designed in accordance with the 
Constitution as a union of economic production and consumption in which 
each spouse participates equally in the other’s income and obligations. 
§§ 26, 26b, and 32a EStG are based on the concept of marriage in civil 
law and social security law, and continue this concept with regard to 
income taxation. The legislature considered income splitting a “reflex” 
to the Zugewinngemeinschaft (community of accrued gains). In accordance 
with the duty of Art. 6 sec. 1 GG to protect marriage and family, the 
splitting method preserves and strengthens the matrimonial union of 
economic production and consumption. A spouse has the option to 
permanently or temporarily work part time, or to even completely 
concentrate on family work, without being taxed less favourably. 

b) Regarding the criterion of comparability, the matrimonial property 
regime and the law on the adjustment of pension rights are thus 
particularly relevant; in addition, accompanying measures from social 
security law, especially regarding survivors’ benefits, need to be 
considered. These constitutive aspects, however, have only been extended 
to registered civil partnerships as of 1 January 2005. The transitional 
provisions did not include any mandatory retroactive extension to 
existing civil partnerships. 

c) The complainants’ civil partnerships can thus – at least regarding 
the fiscal years 2001 and 2002, the only years relevant for this case – 
not be recognised as unions of economic production and consumption 
within the meaning of the provisions on income splitting. The Senate’s 
referral to its case law on estate tax, gift tax, and real estate 
transfer tax, as well as to family allowances under salary law, cannot 
establish findings to the contrary. None of the quoted decisions 
establishes principles that could be directly transferred to the area of 
income tax law. By merely referencing these decisions, the Senate 
subjects itself to the criticism that it is continuing its previous 
jurisprudence in an overly schematic way. 

Extending income splitting to registered civil partners for the fiscal 
years prior to 2005 means that the partners are granted income tax 
benefits to which a union of economic production and consumption is 
entitled, but with no need for the partners to be in any comparable way 
responsible for each other – a responsibility that is supposed to mirror 
the economic union’s advantages. The Senate’s reasoning further does not 
pay attention to the fact that the legislature has deliberately chosen 
not to completely equalise the institutes of marriage and civil 
partnerships, and instead has chosen as legislative standard that the 
civil partners are supposed to be economically independent. The Senate 
replaces the assessment of the legislature, which is the only legitimate 
authority, with its own. 

2. The Senate’s assumption that the legislature’s right to categorise 
does not justify the unequal treatment of marriage and civil partnership 
lacks a sound basis. 

a) The Senate concedes that with the introduction of the splitting 
method in 1958, the legislature also pursued family policy purposes. The 
Senate does not, however, draw the necessary conclusion that this means 
of family policy can justify a category-based privileged treatment of 
marriage as compared to other ways of life, even if they are structured 
in a similarly legally binding way. According to the social reality at 
the time the income splitting was introduced, the legislature could 
assume that the overwhelming majority of marriages were aimed at raising 
children. The legislature could thus let this method – in a categorising 
way – only depend on the existence of a marriage and not, in addition to 
that, on the existence of children. 

b) Nowadays, more and more children are raised in registered civil 
partnerships. However, this does not necessarily allow the conclusion 
that the splitting method had to be opened to all registered civil 
partnerships by way of categorisation as early as in the fiscal years 
2001 and 2002. There is no proof for the Senate’s assumption that such 
fiscal benefits would also typically benefit civil partnerships with 
children. Furthermore, the question that is essential for a 
categorisation remains unanswered, namely the percentage of civil 
partnerships in which children were raised. 

A possible unequal treatment of registered civil partnerships in which 
children are or were raised could also have been mitigated by a limited 
application of the splitting method to these cases alone. The Senate, 
however, did not discuss such a solution in any depth, but exclusively 
referred to the category-based inclusion of civil partnerships. 

3. Finally, considering the purpose of family policy of the legislation 
on income splitting, the legislature should have been granted the option 
to first evaluate the registered civil partnership as to its advance 
effect on the family and the succession of generations and then, 
possibly, take tax consequences. The Senate’s retroactive declaration of 
incompatibility with the Basic Law omits the legislature’s leeway in 
assessing such issues and further limits the ways in which it can act. 
Moreover, in doing so, the Senate overrides the Federal Constitutional 
Court’s earlier case-law according to which the legislature does not 
have to retroactively rectify a situation that is contrary to the Basic 
Law if the constitutional situation had not been sufficiently resolved. 




This press release is also available in the original german version.