Spousal support due to age: No requirement for incapacity to work to occur during the marriage
On December 13, 2023, the Higher Regional Court (OLG) of Hamm (Case No.: II-4 UF 36/23) made a significant clarification regarding the entitlement to spousal support due to age as stipulated in Section 1571 of the German Civil Code (BGB). The case in question addressed whether age-related incapacity for work must have occurred during the duration of the marriage to establish a claim for post-marital spousal support. The decision sheds light on a central issue in family law and specifies the conditions under which a spouse entitled to maintenance can claim support after divorce.
Facts and procedural history
In the underlying case, after the dissolution of the marriage, the applicant sought spousal support due to age from her divorced husband. She argued that, due to health restrictions and having reached the statutory retirement age according to the requirements of the statutory pension insurance, she was unable to pursue gainful employment. However, the applicant only attained the status of age-related incapacity to work after the divorce became final and binding. The claim was unsuccessful in the first instance. However, the Higher Regional Court of Hamm upheld the applicant’s claim to a large extent in the appeal instance and clarified that an entitlement to spousal support due to age does not require that incapacity to work must have occurred during the period of marriage.
Legal classification of spousal support due to age under Section 1571 BGB
Spousal support due to age constitutes an independent form of maintenance within the framework of post-marital maintenance law. Section 1571 BGB stipulates that the divorced spouse can claim maintenance if, due to his or her age, employment can no longer reasonably be expected. The provision therefore links the entitlement to support solely to incapacity for work due to age, without further specifying the timing of the onset of this incapacity—such as in relation to the period of marriage.
No cut-off date “period of marriage” for the onset of age-related reasons
According to the OLG Hamm, what is decisive is that the occurrence of the fact giving rise to the entitlement—namely, the attainment of age-related criteria for support—does not necessarily have to be limited to the period while the marriage exists. Rather, what matters is that after the divorce, the person entitled to support is unable to take up gainful employment, and this is essentially attributable to advanced age and the associated withdrawal from the workforce.
Court’s reasoning
The court explained that neither the wording nor the meaning and purpose of Section 1571 BGB provides grounds for linking the entitlement to an age threshold during the period of marriage. The provision aims to ensure the social security of the needy, divorced spouse in old age and ties the need for support to an objective threshold—reaching retirement or pension age or meeting specific health requirements. Restricting the scope of protection solely to age-related reasons occurring during marriage would run counter to the legislative intent.
Systematic classification in maintenance law
The decision further emphasizes the systematic inclusion of support due to age. Unlike support due to illness under Section 1572 BGB, where a causal link with the duration of marriage may be required, this explicit connection is absent in Section 1571 BGB. The objective is to protect the economically disadvantaged, divorced spouse in old age, regardless of whether incapacity to work occurred before or after the divorce became final.
Practical implications and distinction from other forms of maintenance
Practical relevance
This decision significantly strengthens the position of divorced spouses entitled to support. Persons who, after the end of the marriage, are no longer able to work due to age, still have legal recourse to claim spousal support due to age—even if the age threshold is only reached after the divorce. The court thus takes into account the social reality that retirement and incapacity for work often occur towards the end of a marriage or even only after the marital period.
Distinction from occupational disability pension and other forms of maintenance
Incapacity for work due to age as defined in Section 1571 BGB must be strictly distinguished from other legal grounds for claims such as support due to incapacity for work. Focusing on the person’s age and the resulting unreasonableness of further employment, the entitlement remains independent of these others. Due to this distinction, divorced spouses are provided with guaranteed support even if other benefit types, such as disability pensions, do not apply.
Significance for prenuptial agreements and family law arrangements
The clarification by the OLG Hamm also has repercussions for the drafting of prenuptial agreements and out-of-court settlements in the context of divorce. When making arrangements regarding post-marital maintenance, it should be noted that support due to age is not conditioned on the time of occurrence of incapacity for work during the marriage. Careful drafting and prudent consideration of age-related risks are therefore important for all parties involved.
Summary and outlook
With its recent decision, the OLG Hamm specifies key principles of support due to age. The court makes clear that entitlement to spousal support under Section 1571 BGB does not depend on whether age-related incapacity to work occurred during the marriage. Rather, it is sufficient if the requirements are first met after the divorce becomes final, provided that the other requirements such as need and ability to pay are fulfilled. In this respect, the ruling contributes to greater legal certainty and comprehensibility regarding the granting of maintenance in cases of reduced earning capacity due to age.
Source
Higher Regional Court (OLG) Hamm, order of 13.12.2023 – II-4 UF 36/23
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