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New case-law on the calculation of post-marital maintenance applying the so-called division-by-three method is unconstitutional
Press Release No. 13/2011 of 11 February 2011
Order of 25 January 2011
1 BvR 918/10
By means of the Act for the Reform of the Maintenance Law (Gesetz zur Änderung des Unterhaltsrechts), which has entered into force on 1 January 2008, the legislature has reformed the maintenance law with the objectives of strengthening the best interests of the child, relieving the economic burden on so-called second families and simplifying legislation. From then on, the principle of each spouse's personal responsibility in economic matters has applied more strongly in the law governing maintenance after divorce. According to § 1569 of the Civil Code (Bürgerliches Gesetzbuch - BGB), new version, each spouse is responsible for providing for his or her own maintenance after divorce unless he or she is not in a position to do this. The newly created § 1578b BGB has opened the possibility of reducing post-marital maintenance, and/or of setting a time-limitation to it, under equity aspects in individual cases. Furthermore, the order of priority of those entitled to maintenance in the event that the person liable for maintenance is unable to pay maintenance to all (so-called cases of shortfall) has been newly determined in § 1609 BGB: while the minor children are accorded the first rank, divorced and subsequent spouses are, in principle, equal in rank.
However, what has remained unchanged apart from the determination of the ability to pay of the person liable for maintenance (§ 1581 BGB) is the provision governing the amount of post-marital maintenance. According to § 1578.1 sentence 1 BGB, post-marital maintenance is determined in accordance with the marital standard of living. According to the existing case-law of the Federal Court of Justice (Bundesgerichtshof), the circumstances at the point in time in which the divorce became final were, in principle, decisive for the determination of the marital standard of living. Only by way of exception were changes in the circumstances occurring afterwards taken into account in the determination of the maintenance need. For instance, changes in the divorced spouse's income only had to be taken into consideration when determining the amount of maintenance if they had to be expected with a high degree of probability at the point in time of the divorce and if this expectation had already determined the marital standard of living, or if the changes had constituted the surrogate of housekeeping that had been done before.
However, the Federal Court of Justice now assumes that a divorced marriage's standard of living, which is decisive for the amount of the maintenance need, can experience changes irrespective of whether these changes originated in the marriage. In its judgment of 30 July 2008 (Decisions of the Federal Court of Justice in Civil Matters (Entscheidungen des Bundesgerichtshofes in Zivilsachen - BGHZ) 177, 356) it for the first time took into account a maintenance obligation to a new spouse when determining the previous, divorced spouse's need: it held that the divorced spouse's maintenance need had to be determined by adding up the adjusted incomes of the divorced spouse, of the person liable for maintenance and of this person's new spouse and dividing the result by three (the so-called division-by-three method (Dreiteilungsmethode)). A check calculation then had to ensure that the maximum amount of maintenance which the divorced spouse received was the amount which would have resulted if the person liable for maintenance had not remarried.
The complainant, who had been married to the plaintiff in the original proceedings for 24 years, had initially, upon the divorce, been accorded post-marital maintenance to the monthly amount of 618.00 euros, the difference between her own income and full maintenance. After the plaintiff's remarriage, the Local Court (Amtsgericht), applying the new case-law of the Federal Court of Justice, reduced the monthly maintenance payment to 488 euros in the initial proceedings, taking into account the subsequent wife's income by means of the division-by-three method in the calculation of the maintenance need. The Higher Regional Court (Oberlandesgericht) upheld the judgment with regard to the determination of the maintenance. By means of her constitutional complaint, the complainant challenges in particular a violation of her fundamental right to general freedom of action.
The First Senate of the Federal Constitutional Court has reversed the judgment of the Higher Regional Court and has referred the matter back to it for a new decision. The case-law of the Federal Court of Justice on the "changeable marital standard of living", which it has developed to interpret § 1578.1 sentence 1 BGB and in which it applies the so-called division-by-three calculation method dissociates itself from the legislature's concept for the calculation of post-marital maintenance and replaces it by a model of its own. By this system change, the new case-law transgresses the boundaries of judicial development of the law and violates the general freedom of action, which is protected by Article 2.1 GG in conjunction with the principle of the rule of law (Article 20.3 GG).
In essence, the decision is based on the following considerations:
1. The legislature's concept for calculating post-marital maintenance differentiates between the entitled person's general need to be paid maintenance, the person's actual maintenance need, the ability to pay of the person liable for maintenance, and the order of priority of several persons entitled to maintenance. The starting point of the maintenance calculation is the determination of the maintenance need, which is followed by the examination of the ability to pay of the person liable for maintenance and the distribution of the funds available in the event of shortfall. This approach has been upheld by the legislature when reforming the maintenance law. The same applies to gearing the amount of maintenance to the marital standard of living according to § 1578.1 sentence 1 BGB; here, the legislature made reference to the divorced spouses' individual income situation, for the determination of which it, as before, wants the point in time of the divorce to be decisive.
The case-law of the Federal Court of Justice disregards the fact that this concept has been retained; it performs a system change in which it replaces the legislature's fundamental decision concerning the determination of the maintenance need by its own ideas of justice. The change in interpretation eliminates the legislative differentiation between maintenance need and ability to pay. It takes into account maintenance obligations to another spouse, which have arisen post-maritally, already at the level of the divorced spouse's need (§ 1578.1 sentence 1 BGB) even though the law provides its being taken into account only at the level of the ability to pay according to § 1581 BGB, which is to be assessed according to the present circumstances of the person liable for maintenance. Instead of determining the maintenance need according to the dissolved marriage's "marital standard of living", it replaces this standard by that of a "changeable marital standard of living"; thus, and applying the division-by-three method, it ultimately determines the maintenance need according to the actual standard of living and the divorced couple's financial situation and burdens at the point in time in which the maintenance claim is asserted, taking into account also the income obtained by the new spouse of the person liable for maintenance, or fictitiously attributed to the new spouse. The new standard no longer reflects the marital standard of living and completely dissociates itself from the statutory parameters. Furthermore, the new case-law only takes the subsequent spouse's maintenance need into account in the determination of the divorced spouse's maintenance need as long as this results in a reduction of the divorced spouse's maintenance need. If the division-by-three method favours the divorced spouse, his or her maintenance need is reduced by means of the check calculation introduced by the Federal Court of Justice to the amount resulting from the marital standard of living. The consequence of this case-law is that due to the new method of need calculation, the divorced spouse will, as a general rule, receive less, seldom the same, but never more than as the result of a calculation which is determined by the marital standard of living. The new case-law cannot be justified with any of the recognised methods of interpretation. It runs counter to the clear wording of § 1578.1 sentence 1 BGB, which has made the "marital standard of living" the standard of the assessment of need, i.e. the circumstances that have existed in the divorced marriage or are at least connected with it. A connection to the "marital standard of living" can, however, no longer be made where changes are taken into account which certainly cannot be attributed to the marriage but are due to the divorce, such as maintenance obligations to a new spouse. The new interpretation of § 1578.1 sentence 1 BGB also cannot be inferred from its systematic integration into the context of the provision because it eliminates the differentiation, provided by the legislature, between maintenance need and ability to pay. Furthermore, it contradicts the purpose of § 1578.1 sentence 1 BGB, which serves to ensure the spouse entitled to maintenance, when his or her need is determined, a fundamentally equal participation in the status jointly achieved at the point in time in which the divorce becomes final. The judicial division-by-three method connected with the check calculation unilaterally burdens the previous spouse in favour of the person liable to maintenance and of his or her subsequent spouse. Moreover, it disregards the legislature's will. To the extent that the legislature has introduced restrictions of post-marital maintenance, such as the reduction or time-limitation of maintenance claims according to § 1578b BGB, it did not intend to make the divorced spouse's position under maintenance law worse from the outset, as the determination of need according to the three-way decision intends, but only under certain equity aspects. Finally, the change in case-law cannot be justified by invoking the maintenance reform's objective of simplifying maintenance law. It does not make the maintenance calculation easier but only adds another calculation step, i.e. the determination of the need by means of the division by three, because in the context of the check calculation, a maintenance calculation according to the method conventionally used by the courts, which takes the dissolved marriage's marital standard of living into account, is maintained.
2. The decision of the Higher Regional Court which is contested by the constitutional complaint violates the complainant's economic freedom to act as a manifestation of the general freedom to act under Article 2.1 GG in conjunction with the rule of law principle (Article 20.1 GG). It is based on the new case-law of the Federal Court of Justice, which transgresses the boundaries of permissible judicial development of the law, as a consequence of which the complainant's maintenance need, and hence her maintenance claim, have been curtailed in a manner not intended by the legislature.