Headnote

to the Order of the First Senate of 7 October 2003

– 1 BvR 246/93 –

– 1 BvR 2298/94 –

1. Decision regarding the consideration of fiscal advantages from spousal splitting in the assessment of the maintenance payable to the former spouse.

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 246/93 –

– 1 BvR 2298/94 –

IN THE NAME OF THE PEOPLE

In the proceedings

on

the constitutional complaint

– 1 BvR 246/93 –,

– 1 BvR 2298/94 –

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Papier,

Jaeger,

Haas,

Hömig,

Steiner,

Hohmann-Dennhardt,

Hoffmann-Riem,

Bryde

held on 7 October 2003:

1. I. 1. In the proceedings 1 BvR 246/93, the judgment of the Braunschweig Higher Regional Court of 13 January 1993 – 1 UF 78/92 – violates the complainant’s fundamental right under Article 6.1 of the Basic Law (Grundgesetz – GG). The judgment is overturned. The case is referred back to the Braunschweig Higher Regional Court.

2. II. 1. In the proceedings 1 BvR 2298/94, the judgment of the Stuttgart Higher Regional Court of 27 October 1994 – 16 UF 181/94 – and the judgment of the Waiblingen Local Court of 21 April 1994 – 11 F 72/94 – violate the complainant re 1 in his fundamental right under Article 6.1 of the Basic Law. The judgments are overturned. The case is referred back to the Waiblingen Local Court.

3. 2. The constitutional complaint of the complainant re 2 is dismissed as inadmissible.

R e a s o n s:

A.

The constitutional complaints relate to the consideration of fiscal advantages from a new marriage of a person obliged to provide maintenance in the assessment of the maintenance payable to the former spouse.

I.

1. If a spouse is unable to take care of himself or herself after the divorce, he or she has a maintenance claim against his or her spouse divorced from him or her according to § 1569 of the Civil Code (Bürgerliches Gesetzbuch – BGB). According to § 1578.1 sentence 1 of the Civil Code, the scope of the maintenance is determined here by the marital circumstances. The Federal Court of Justice (Bundesgerichtshof – BGH) and the case-law concurring with it understand this to mean the circumstances determining the living conditions during the marriage, and hence the marital standard of living until divorce (see BGH, Zeitschrift für das gesamte Familienrecht – FamRZ 1982, p. 575 (576); FamRZ 1999, p. 367 (368); established case-law). Subsequent changes in the economic circumstances are hence only to be taken into account if they were very much to be expected at the time of the divorce and the underlying development already contributed towards determining the marital circumstances (see BGH, FamRZ 1987, pp. 459 (460); established case-law).

In calculating the marital income, the case-law takes in principle as a basis the actual net income available on the basis of the concrete fiscal burden which was made by gainful employment during the marriage. The real tax burdening the income is hence said to also remain material for the assessment of the economic circumstances characterising the marriage if it increases or falls after separation or divorce of the spouses by virtue of a change in tax classes prescribed by law or of a change to the statutory tax tariff (see BGH, FamRZ 1990, p. 503 (504); FamRZ 1990, p. 981). This is said to also apply on re-marriage of the spouse obliged to provide maintenance. A splitting advantage thereby brought about would not have to continue to benefit him or her and his or her new family; rather in this case too, the tax actually paid would have to be deducted from the gross income when calculating the maintenance. If, however, the spouse obliged to provide maintenance has had himself or herself classified in tax class V, the wage tax actually retained is said to be corrected by a deduction by means of which a shift in the fiscal burden linked with this classification to the spouse obliged to provide maintenance is remedied as far as possible (see BGH, FamRZ 1980, p. 984). Something else would however have to apply to a case in which the person obliged to provide maintenance is not left with sufficient means to maintain his or her new spouse. It would be grossly unfair here if the person obliged to pay maintenance had to use the splitting advantage granted for the new marriage for the former spouse. It is hence said to be justified to reduce the maintenance claim according to § 1579 no. 7 of the Civil Code to the amount which is said to emerge without consideration of the splitting advantage (see BGH, FamRZ 1985, p. 911-912). However, one may not presume an actual tax deduction if the fiscal saving was a consequence of actual expenditure incurred to form assets and not taken into account in terms of maintenance law in such a way as to reduce income.

2. a) According to § 26 of the Income Tax Act (Einkommensteuergesetz – EStG) as promulgated on 7 September 1990 (Federal Law Gazette (Bundesgesetzblatt – BGBl) I p. 1898), spouses may opt between two different types of fiscal assessment if they are not permanently separated: separate assessment, as well as the joint assessment using the splitting tariff (§§ 26b and 32a.5 of the Income Tax Act).

With joint assessment, the taxable annual income of both spouses is first and foremost halved in order to calculate the fiscal burden, and the income tax is hereafter calculated from the basic income tax schedule, and is then in turn doubled. The amount thus calculated according to § 32a.5 of the Income Tax Act constitutes the total tax for the couple. Because of the alleviation of the fiscal progression brought about by splitting, the fiscal advantage emerging for a couple from joint assessment is highest if only one spouse has an income, and is reduced in proportion to the additional contribution made by the other spouse to the household income. If the spouses’ income is equal, there is no splitting advantage.

The income tax is initially levied according to §§ 38 et seq. of the Income Tax Act by deduction of wages at source as wage tax. For the implementation of the monthly wage tax deduction, employees who are unrestrictedly subject to income tax are classified in tax classes (§ 38b of the Income Tax Act). If both non-separated spouses receive an income, they are both classified in tax class IV. At their request, they may however opt to combine tax class III (lower tax rate for one of the spouses) with tax class V (higher tax rate for the other spouse). If only one spouse receives a wage, he or she is classified in tax class III. On expiry of the calendar year, for spouses who have both received a wage, the income tax is assessed according to § 25.1 of the Income Tax Act on the basis of a joint tax declaration to be submitted by both spouses.

If the spouses separate permanently, they no longer have the possibility to be assessed jointly. They are classified in wage tax class I or II as if they were single employees. If a divorced spouse re-marries, he or she and his or her new spouse may also opt for joint assessment according to § 26b of the Income Tax Act, as well as their wage tax class combination according to § 38b of the Income Tax Act, and hence receive the fiscal splitting advantage.

[…]

c) According to § 10.1 no. 1 of the Income Tax Act, a separated or divorced spouse may claim a tax deduction for maintenance payments made to the other spouse with the consent of the latter up to a maximum prescribed by law as special expenditure. The spouse entitled to maintenance must then pay tax on the maintenance payments (§ 22 no. 1a of the Income Tax Act). This may lead to a tax saving for the person obliged to provide maintenance consisting of the difference between his or her own reduced fiscal burden and the possibly increased fiscal burden of the person entitled to maintenance, from which he or she must release the latter.

This so-called de facto splitting was introduced in 1979 in order to do better justice to the fiscal ability to pay of separated or divorced spouses. The fiscal consideration of the maintenance payments is said to be justified because these are said to constitute not only a greater burden on dissolution of the marriage, but the cessation of splitting is also said to be added (see Bundestag printed paper (Bundestagsdrucksache – BTDrucks) 8/2100, p. 60).

II.

1. The first marriage of the complainant in the proceedings 1 BvR 246/93 was dissolved in 1980. He re-married. His new wife was in gainful employment. Since his retirement in 1986, the complainant was in ancillary employment. The complainant was obliged to provide maintenance to his former wife. After the latter had drawn an old-age pension from October 1988, the complainant applied for the cessation of his maintenance obligation.

a) The Local Court rejected his corresponding action as unfounded, and sentenced the complainant to continue to pay maintenance in response to the counter-claim of his former wife. The Higher Regional Court amended this ruling, set the maintenance obligation of the complainant for the period of 1 January 1989 to 20 October 1991 and released the complainant from a maintenance obligation for the time after this. In determining the amount of the maintenance, the court took into account tax refunds which had accrued to the complainant. It found that they were to be taken into account as increasing his income since they were based on the fact that the complainant had opted for tax class IV although he earned much more than his present spouse. Taxation according to classes III and V would be right in fiscal terms. The tax class chosen by the complainant was said to result in an additional burden of DM 260 per month. The splitting advantage which the complainant could achieve in tax class III however also had to benefit his former spouse who was entitled to maintenance. In this sense, she was said to have to also benefit appropriately from the tax refunds which were taken into account from 1989 onwards for the subsequent years at a monthly amount of DM 234.25 as increasing income.

b) The complainant’s constitutional complaint, with which he complains of a violation of his rights under Article 2.1, Article 3.1, Article 6.1, Article 12.1 and 12.2, as well as Article 33.5 of the Basic Law, is directed against the ruling of the Higher Regional Court.

In addition to the calculation method, the inclusion of his ancillary income and the non-inclusion of travel expenses, the complainant also considers the consideration of the fiscal splitting advantage in assessing the maintenance to be unconstitutional. The splitting advantage is said to be granted to the existing marriage, not to the one that has been dissolved. If this advantage were to be passed on to the former wife via maintenance, this was said to be in violation of Article 6.1 of the Basic Law. It was said that, in this way, not only the complainant, but also his second wife, to whom the advantage accrued, was called to account to cover the maintenance.

2. The complainant re 1 in the proceedings 1 BvR 2298/94 was divorced in 1989. He was obliged to effect post-marital maintenance payments to his spouse who had been given custody for the child issued from the marriage. The complainant later re-married. After the birth of a joint child, his new wife, the complainant re 2, gave up her gainful employment.

a) The Local Court re-defined the amount of the maintenance payments to the former wife for the period from 2 February 1994. Because of the re-marriage of the complainant re 1, the court used as a base in calculating the maintenance his net income calculated according to tax class III. It did not consider a correction of the maintenance amount thus calculated according to § 1579 no. 7 of the Civil Code to be necessary in view of the income which the complainant still had at his disposal.

The Higher Regional Court ordered the complainant re 1 to make a somewhat higher maintenance payment, and also based the calculation of the net income of the complainant re 1 on tax class III. The fiscal advantage emerging from this was said not to be allocated only to the complainant’s new family, but to also benefit his former wife and the child from this marriage. The tax deduction was said not to be a change in the conditions characterising the marital circumstances which was inconsiderable for the assessment of the maintenance requirement. Rather, the fiscal burden was said to be material in its respective real amount. It was said not to be a matter of whether the fall in net income during the relatively long period of living separately caused by the change in tax classes from III to I had been permanent. It was said that the splitting advantage regained as a result of the new marriage should be taken into account since the assessment of the maintenance was determined by the net income. There was said to be no reason for a deviation from this view. Also a reduction of the maintenance according to § 1579 no. 7 of the Civil Code could not be considered since it was not a hardship case.

b) The complainants lodged constitutional complaints against both rulings, with which they complain of a violation of Article 6.1 and Article 3.1 of the Basic Law. The complainant re 2 additionally considers that her right under Article 6.4 of the Basic Law has been violated.

[…]

B.

I.

The constitutional complaint of the complainant in the proceedings 1 BvR 246/93 is admissible. […]

II.

1. Only the constitutional complaint of the complainant re 1 is admissible in the proceedings 1 BvR 2298/94. […]

2. The constitutional complaint of the complainant re 2, by contrast, is inadmissible. Regardless of the fact that the complainant re 2 was not involved in the original proceedings, she has no grievance necessary for lodging the constitutional complaint. Her legal position has not been directly affected by the impugned rulings (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 24, 289 (295); 51, 386 (395)).

The complainant’s fiscal burden is also initially reduced together with her husband by the splitting advantage. The rulings do not oblige her, but only the husband, to effect maintenance payments to the divorced wife of her husband. That her own maintenance claim takes lower priority in principle than that of the divorced wife is a consequence of § 1582 of the Civil Code, not of the rulings. However, the total income available to the new marriage, which is earned by the husband of the complainant re 2 alone, is reduced by virtue of his maintenance obligation towards his former spouse, and in this context also by the consideration of the splitting advantage in the assessment of the maintenance requirement. If this reduces her maintenance claim towards her husband, this is because the maintenance is measured by the actual ability to pay of the person obliged to provide maintenance. In this respect, via their influence on the ability to pay of the husband of the complainant re 2, the rulings indirectly affect her maintenance claim towards the husband. This is however not sufficient for the presumption of a grievance giving rise to the admissibility of the constitutional complaint.

C.

The constitutional complaints which are admissible are also well founded. The impugned rulings do not stand up to the constitutional-court review against the standard of Article 6.1 of the Basic Law.

I.

The protection granted by the legislature on the one hand to the dissolved marriage by the maintenance provisions and on the other hand to the existing marriage by the fiscal-law provisions is compatible with the equality of marriages according to Article 6.1 of the Basic Law (1 and 2). Fiscal advantages which are granted by law only to the existing marriage to give concrete form to the protection mandate from Article 6.1 of the Basic Law may not be removed from it once again by the courts and passed on to the dissolved marriage (3).

1. As a fundamental provision that determines values, Article 6.1 of the Basic Law gives rise to an obligation incumbent on the state to protect and promote marriage for the entire area of private and public law relating to marriage (see BVerfGE 6, 55 (76); 28, 104 (113); 82, 60 (81); 87, 1 (35); 105, 313 (346)). This protection applies to any marriage without distinction (see BVerfGE 55, 114 (128-129)). Not only the existing marriage, but also the subsequent effects of a dissolved marriage are protected by Article 6.1 of the Basic Law (see BVerfGE 53, 257 (296)). Because of the equality and equivalence of a dissolved and a newly concluded marriage with in each case different, indeed conflicting interests emerging from their succession which must be equally protected, no special requirements can be derived from Article 6.1 of the Basic Law for the specific shaping of the respective legal positions by the legislature (see BVerfGE 66, 84 (94-95)). The legislature can in principle determine for itself by what means it intends to bring about the protection of the marriage incumbent on it with consideration of the different marriage constellations (see BVerfGE 87, 1 (36)). It is merely to be examined whether there are adequate reasons for different treatment of marriages by the legislature. The Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) is not to rule here whether the legislature has brought into being the most fair or expedient arrangement, but whether it has complied with the limits imposed on its latitude (see BVerfGE 52, 277 (281)), which are also subject to the principle of the equivalence of marriages established by Article 6.1 of the Basic Law.

2. a) Since Article 6.1 of the Basic Law also causes protection to be provided to the dissolved marriage which covers post-divorce maintenance claims as a subsequent consequence of the personal responsibility of the spouses for one another, as the Federal Constitutional Court has already ruled (see BVerfGE 66, 84), it is constitutionally unobjectionable for the legislature to grant priority to the divorced person entitled to maintenance in the shape of § 1582 of the Civil Code in case of a conflict of maintenance claims from the dissolved marriage and from the new marriage of a person obliged to provide maintenance. It has hence taken account of the fact that the claim of the divorced spouse already existed before the new marriage was concluded, both new spouses knew about this economic burden from the first marriage and in this respect were able to adjust to this (see Federal Constitutional Court – BVerfG, loc. cit., p. 98). These remain sufficient reasons justifying the different treatment in terms of the maintenance of divorced and married persons entitled to maintenance.

b) Equally, however, the legislature may grant advantages to an existing marriage which it denies to a marriage that has been dissolved. Only when the spouses live together may it presume that they in principle form a community of earning and consumption together in which the each spouse participates in the income and burdens of the other (see BVerfGE 61, 319 (345-346)). Only in this community of earning does the person not in gainful employment also make a contribution to the joint maintenance.

3. Fiscal advantages the coming into being of which are caused by the conclusion of marriage, which are contingent on the spouses living together and which are granted only to the existing marriage by the legislature in giving concrete form to its mandate to protect may not be removed from it once again by the courts by virtue of being assigned to the marriage that has been dissolved and by increasing the maintenance of the divorced spouse via the maintenance calculation.

a) The interpretation and application of statutory provisions is a matter for the non-constitutional courts. The Federal Constitutional Court only reviews them insofar as whether – apart from violations of the prohibition of arbitrariness – the influence of the fundamental rights has been fundamentally misjudged in the interpretation and application of non-constitutional law (see BVerfGE 18, 85 (92-93, 96); 85, 248 (257-258)). This also applies to provisions which have been handed down by the legislature to specify fundamental-rights protection (see BVerfGE 53, 30 (57-58)). When it comes to provisions intended to meet fundamental right-related protection obligations, the relevant fundamental right has been violated if its interpretation and application fail to fulfil the protective purpose envisaged by the fundamental right (see BVerfGE 89, 276 (285-286)).

If the legislature distinguishes between dissolved and existing marriages in implementing and specifying its obligation under Article 6.1 of the Basic Law, and if it grants them different advantages with which it intends to do justice to their respective needs, the courts must take this into account in their rulings. This emerges from the principle of Article 6.1 of the Basic Law to protect each marriage which takes on its specific form in the respective statutory implementation.

b) With maintenance for divorced parties, the legislature has lent expression to the continuation of the spouses’ personal responsibility after divorce, and has also placed the maintenance burden of the person obliged to provide maintenance vis-à-vis his or her divorced spouse on their new marriage. With § 1578.1 sentence 1 of the Civil Code, it has however orientated the standard of the maintenance of a divorced spouse in line with the marital circumstances, and hence restricted it to the respective income situation which characterised the marriage of the former spouses until their divorce. In line with the wishes of the legislature, this rules out taking account of those advantages in the assessment of post-marital maintenance which do not originate from the marriage that has been dissolved and which continue to exist, but which only came into being on conclusion of a new marriage.

c) The original cases do not offer an occasion to make a statement on the constitutional questions concerned with spousal splitting since they are not material to the ruling. The impugned judgments already ignore Article 6.1 of the Basic Law because they have allotted to the marriage that has been dissolved a fiscal advantage which may emerge from tax splitting according to § 32a.5 of the Income Tax Act.

The legislature has allotted the advantage which may emerge from fiscal splitting to the existing marriages of spouses who are assessed jointly for tax and who live together. The splitting tariff hence ceases to apply if the spouses are permanently separated or if they divorce. In order to reduce the tax burden on the person obliged to provide maintenance emerging at the same time as the cessation of the splitting advantage by a maintenance claim of the separated or divorced spouse, the legislature has granted to divorced spouses the possibility of de facto splitting which is available as long as the maintenance obligation exists, regardless of a re-marriage of the person obliged to provide maintenance. If however the latter concludes a new marriage, if the spouses are assessed jointly, this is an element giving rise to the claim for the occurrence of a possible splitting advantage. This is not the resumption of the fiscal splitting advantage which was enjoyed or could have been enjoyed by the divorced spouses when their marriage existed. Rather, with the new marriage a new income constellation arises between the spouses who are now in a union which is material for whether and to what degree their marriage enjoys fiscal advantages by means of the splitting procedure. The new marriage, and not the dissolved marriage of the re-married person obliged to provide maintenance, is hence to see its tax burden reduced. That this reduction of the burden and the income thereby left to the new marriage in fiscal terms may also cover obligations of the spouses, and hence may where appropriate also be subject to pledging, changes nothing about the fact that the legislature has granted the tax burden reduction to the new marriage and not to the dissolved marriage. Had it intended in terms of the law on maintenance to allot it to the dissolved marriage, it should have handed down an explicit statutory provision to this end. However, this is precisely what it did not do, but it exclusively granted the splitting advantage to existing marriages and referred dissolved marriages to de facto splitting. Such a statutory specification is in line with the protective mandate according to Article 6.1 of the Basic Law, which is also to be observed in interpreting § 1578.1 sentence 1 of the Civil Code.

II.

1. The courts fundamentally disregarded this in their interpretation of § 1578.1 sentence 1 of the Civil Code in the rulings impugned by the constitutional complaints. They have deprived the complainants’ new marriages of the protection of Article 6.1 of the Basic Law, to which they are entitled by implementation of this Basic Law mandate by the legislature by virtue of the fact that the income increased by the splitting advantage for the new marriage of the re-married person obliged to provide maintenance has been accommodated in the assessment of the maintenance requirement in real terms or fictitiously because they take the view that this advantage should also benefit the divorced wife of the person obliged to provide maintenance. At the same time, they have allowed the fiscal advantage granted to the new marriage to benefit the marriage that has been dissolved although the legislature particularly wished with this to cause the new marriage now existing to enjoy the protection to which it is indeed entitled according to Article 6.1 of the Basic Law.

a) There is no reason to presume that advantages accruing to the new marriage of a divorced person obliged to provide maintenance had already arisen in his or her previous marriage and had determined the circumstances of the parties now divorced. The divorce rate, and hence also the number of re-marriages, has increased in recent decades. It would however already be inadmissible because of the permanence which in principle characterises marriage, and would also not be supported by indications in reality, if one wished to presume for this reason that, on conclusion of marriage, its possible failure and a subsequent new marriage was concurrently taken into consideration and that this would not only determine the conduct of the spouses, but also their income circumstances.

b) The divorced spouse entitled to maintenance also does not suffer any disadvantage by virtue of the new marriage retaining the fiscal advantage. His or her maintenance claim continues to take priority over that of the person now married to the person obliged to provide maintenance, but is solely measured by the income situation in the dissolved marriage. The fact that the fiscal advantage is no longer considered which may have also accrued to the dissolved marriage during its existence is a consequence of the provision according to which joint fiscal assessment may only take place with spouses who live together, and is not the consequence of the re-marriage of the person obliged to provide maintenance.

c) Finally, considerations of practicability may also not justify depriving the new marriage of the person obliged to provide maintenance of the fiscal advantage granted to it in the specific shaping of the protection of Article 6.1 of the Basic Law by the legislature by virtue of the person obliged to pay maintenance also being called to account with this advantage to pay maintenance to his or her divorced spouse. It is simpler for the maintenance calculation to proceed on the basis of the net income actually achieved by the person obliged to provide maintenance, which may be ascertained from the monthly salary statement. The case-law itself however neglects these considerations if the tax class combination selected in the new marriage of the person obliged to provide maintenance does not primarily produce the splitting advantage for the latter already in the monthly tax deduction, and in such cases fictitiously calculates the income on which the maintenance assessment is to be based. It follows the same method if a hardship case arises. Also in other aspects, however, a somewhat more difficult calculation, but one which is possible and supported by technology and programs, is not a sufficient reason to allot fiscal advantages in derogation from the intention of the legislature.

2. a) The relief sought by means of the constitutional complaints is therefore to be admitted. Insofar as the rulings which they impugn are based on disregard for Article 6.1 of the Basic Law, these are to be overturned according to § 95.2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). The case is referred back to the Higher Regional Court in the proceedings 1 BvR 246/93, and to the Local Court in the proceedings 1 BvR 2298/94. The courts will have to ensure that the complainants’ new marriages can indeed retain the splitting advantage which they have been granted. They must decide how they wish to do so.

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