Term and Meaning of the Restoration of Marital Life
Die Restoration of marital life is a civil law term that is particularly anchored in German family law. It refers to the resumption or initial establishment of the joint marital cohabitation between spouses, which fundamentally encompasses the core area of marriage as a community of life. The regulations concerning this can be found primarily in the German Civil Code (BGB), namely in the provisions on marriage and the marital relationship (§§ 1353 et seq. BGB).
The term is primarily of practical significance in legal issues surrounding the separation of spouses, separation and divorce, spousal maintenance, as well as in connection with special family law interim proceedings (so-called interim orders).
Legal Framework of the Restoration of Marital Life
Legal Foundations
The legal guidelines for restoring marital life are set out in the provisions of the German Civil Code, in particular:
- § 1353 BGB – Marital Cohabitation
- § 1361 BGB – Spousal Maintenance During Separation
- §§ 1365 et seq. BGB – Legal Relationships Between Spouses
- § 861 ZPO – Proceedings for Restoration of Marital Cohabitation (interim order)
Marital Cohabitation
The core aspect of restoring marital life is the resumption of the so-called marital cohabitation. § 1353 para. 1 BGB stipulates that spouses are obligated to maintain marital cohabitation. This includes:
- living together in the same residence
- a personal connection
- support and consideration
Marital cohabitation encompasses not only living together under one roof, but also mutual affection, care, and cooperation in household and life management. Restoration of marital life therefore means the actual and intentional reestablishment of this comprehensive community.
Areas of Application and Legal Consequences
Separation and Living Apart
A key area of application is the living apart of spouses pursuant to § 1567 BGB. Restoration of marital life becomes particularly significant when, following (temporary) separation, one spouse wishes to resume marital cohabitation.
Right to Restoration of Marital Life
In principle, each spouse is entitled to have the other spouse participate in joint marital life, provided there is no intention to separate. Refusal to resume cohabitation can have far-reaching consequences for questions of maintenance or divorce.
Judicial Enforcement
Interim Orders
Pursuant to § 861 ZPO, it is possible to enforce the restoration of marital life by way of an interim order in court. However, in practice this is extremely rare, as forced cohabitation in a private marital home can rarely yield any real and reasonable results.
Such proceedings generally serve to secure the prerequisites for cohabitation (e.g. access to the marital home or handing over of keys). However, the will of both spouses to resume the marital community remains essential.
Limits to Restoration (Unreasonableness)
A claim for the restoration of marital life is excluded if cohabitation is no longer reasonable for one spouse (e.g. in cases of violence, threats, or serious breaches of loyalty). The limit here lies in personal rights and protection from violence.
Significance in Maintenance Law
Restoration of marital life has direct consequences for the claim to separation maintenance under § 1361 BGB. Maintenance can only be claimed if marital life has actually ended. If resumption of cohabitation occurs through restoration of marital life, the claim to separation maintenance ends.
Practical Relevance and Procedures
Typical Procedural Steps
- Extrajudicial Settlement: Attempts at restoration are often preceded by conversations or mediation.
- Filing an Application with the Court: In exceptional cases, a spouse may apply to the court to oblige the other to restore marital life.
- Interim Legal Protection: In particularly urgent cases, an interim order may be applied for.
- Enforcement: Actual forced cohabitation is legally and factually excluded; instead, accompanying measures such as access to the home are regulated.
Divorce and Maintenance Proceedings
If restoration of marital life does not occur, the separation continues, which often leads to further family law proceedings—especially divorce and separation maintenance. Resumption of cohabitation resets the separation period.
Limits of the Claim and Case Law
Personal Rights and Reasonableness
Restoration of marital life is inadmissible if it would impair the personal rights or welfare of a spouse or common children. Violence, threats, persistent insults, or serious breaches of fidelity are typical reasons for unreasonableness.
Key Decisions
Case law has largely restricted the enforceability of restoring marital life, emphasizing that marriage is based on mutual will. Forced cohabitation is contrary to the protection of human dignity and the principle of voluntary living arrangements.
Summary
Restoration of marital life is a central concept in German family law and refers to the resumption and maintenance of marital cohabitation between spouses. It is governed legally by numerous provisions on cohabitation, maintenance, and divorce proceedings. Despite theoretical possibilities of judicial enforcement, actual forced reinstatement of cohabitation is impermissible and in practice occurs only in exceptional cases. The limits are set by personal rights protection and criteria of unreasonableness. In family law practice, the restoration of marital life is particularly relevant in connection with separation, maintenance, and divorce proceedings, where it has far-reaching legal consequences.
Frequently Asked Questions
What legal obligations exist in connection with the restoration of marital life?
The legal obligations regarding the restoration of marital life arise from the relevant provisions of the German Civil Code (BGB), in particular §§ 1353 et seq. BGB. Spouses are thus obligated to live in a marital community and to take responsibility for one another. Legally, this means that they must provide each other support and assistance, and take account of each other’s concerns. However, the actual implementation of this obligation remains private and is generally not subject to state control, particularly regarding the personal structuring of the relationship or household duties. Forced enforcement of the restoration of marital life by state measures is inadmissible (§ 120 para. 3 FamFG), as the personal rights and human dignity of spouses are protected.
Is forced restoration or compulsion of marital life legally possible?
Forced restoration or enforcement of marital cohabitation is not permitted under German law. This results in particular from the prohibition of enforcement in the case of highly personal acts (§ 120 para. 3 FamFG, § 888 para. 3 ZPO). Legislators thus protect the personal freedom and right of self-determination of the spouses. Restoration can only be encouraged through appeals or counseling, but not through judicial compulsion or sanctions. A family court application by which a spouse seeks to compel restoration of marital cohabitation is therefore generally inadmissible.
What legal consequences result from refusal to restore marital life?
Refusal to lead marital life together can, under certain circumstances, constitute a “breakdown” of the marriage within the meaning of § 1565 BGB and thus initiate or accelerate divorce proceedings. Moreover, continued separation can affect maintenance claims and the distribution of household goods. It is important to distinguish whether the separation is based on mutual agreement or one spouse unjustifiably refuses restoration. In the latter case, this can also be relevant for separation maintenance or access rights for joint children.
What role does the “joint household” play in the legal context of restoring marital life?
Maintaining a joint household is typically an expression of marital cohabitation, but it is not mandatory if the spouses mutually agree to a different way of life. In the event of a dispute about the home or remaining in the household, pursuant to § 1361b BGB, one spouse may demand that the other surrender the marital home, particularly to protect against hardship. The courts will then examine whether there are good reasons making separation necessary. Even after separation, the principle of consideration and mutual protection remains relevant.
Does refusal to restore marital life affect claims to maintenance?
Refusal to restore marital life can become relevant, particularly with regard to separation and post-marital maintenance (§§ 1361, 1579 BGB). A spouse who, without good reason, dissolves or refuses to restore the marital cohabitation may lose all or part of their maintenance claim (e.g. in cases of gross unfairness). However, this requires an individual assessment by the family court, which will make a decision taking into account all the circumstances of the case.
To what extent is restoration of marital life relevant in international marriages?
For international marriages, the relevant law applicable to the restoration of marital life must be determined. According to Art. 15 EGBGB and the relevant regulations (e.g. Rome III Regulation), either German or foreign law may be decisive. Different perceptions of the nature of marriage must be considered, especially regarding modalities of separation, duties of the spouses, and possible state interventions. In cross-border cases, the enforceability of claims for restoration of marital life may also be influenced by the recognition and enforcement of foreign decisions.
Can spouses contractually agree to restore marital life?
In principle, spouses are free to establish arrangements about their life together in marriage contracts. However, clauses aimed at the forced restoration or continuation of marital life are not legally enforceable (§ 138 BGB, immorality). Personal actions and highly personal areas of life are excluded from effective contractual arrangements. Contractual provisions which, for example, obligate a spouse to pay maintenance in the event of permanent refusal to restore marital life can nevertheless serve as guidance in assessing maintenance claims, if the parties have so agreed.
