Term and Legal Background of Conjugal Union
Die Conjugal Union is a term from German family law and describes the enduring, sexual relationship between two persons within a marriage or a registered civil partnership. Its legal significance is recognized in the context of marriage, marital cohabitation, as well as in the dissolution of marriage. Central to this concept is that the conjugal union encompasses married life with its partnership-based sexual relationship and can have various legal consequences.
Legal Sources and Evolution of the Term
Historical Development in Family Law
In German law, the term ‘conjugal union’ traditionally originates from marriage and family law. The German Civil Code (BGB) does not literally use the term but describes the marital relationship in § 1353 as a legal bond ‘for life’ with rights and obligations. Nonetheless, the conjugal union always served as an unwritten prerequisite of the classic marriage model.
Establishment and Significance in Jurisprudence
The courts have, over various decades, emphasized the conjugal union as an essential component of marital life. Thus, persistent unwillingness to enter into a conjugal union can, according to established case law, be seen as a ‘serious breach of duty disrupting the marriage’ and may affect the consequences of divorce.
The Conjugal Union under German Marriage Law
Nature of the Conjugal Union
Conjugal union is understood as the mutual agreement of both spouses regarding sexual intercourse, which expresses partnership-based love and attachment. It is considered a part of the marital relationship as per § 1353 BGB. The conjugal union does not establish a legal obligation for sexual intercourse but is regarded as an essential aspect of marital cohabitation.
Content and Limits
The limits of the conjugal union arise from the principle of individual self-determination of both partners: there is no legal compulsion to engage in sexual relations. No claim can be asserted in this regard either, since coercion into sexual intercourse is a criminal offense (see § 177 German Criminal Code: sexual coercion and rape).
Relevance for Marriage
The ability and willingness to commit to a conjugal union may be considered a requirement for the validity of a marriage. In the past, in cases of complete and lifelong inability to engage in a conjugal union, this could serve as grounds for annulment (inability to consummate the marriage), which, under today’s law, generally no longer applies.
The Conjugal Union During Marriage
Significance for Marital Cohabitation
Courts view the conjugal union as a significant aspect of the marital partnership. Its absence can indicate the failure of the marriage, especially if one partner has refused or denied the conjugal union without understandable reasons.
Impact on Separation and Divorce
A permanent exclusion or unjustified refusal of conjugal union can be regarded as evidence of ‘living apart’ according to § 1567 BGB and thus provide indications for separation. In the context of divorce, the unlawful exclusion of the partner from the conjugal union can constitute a breach of marital duties, which may play a role regarding maintenance claims or the concept of fault under previous legal systems.
Protection Against Coercion and the Right to Self-Determination
The right to sexual self-determination takes precedence over all claims arising from the conjugal union. Mutual agreement is essential. Coercion into entering or continuing the conjugal union is excluded and carries criminal consequences.
The Conjugal Union and Property Rights
The question of whether the absence of a conjugal union has implications concerning property, such as distribution of accrued gains or maintenance, is answered in the affirmative by courts only in exceptional cases. As a rule, the marital partnership continues to exist — regardless of whether there is a conjugal union — and no automatic effects result regarding property rights or claims for maintenance.
The Conjugal Union in Registered Civil Partnerships
With the introduction of the Life Partnership Act (LPartG), the concept of conjugal union was extended to same-sex partnerships. Here, too, a mandatory conjugal union does not exist; rather, it expresses the protection of partnership-based cohabitation and carries similar legal significance as in marriage.
The Conjugal Union in an International Context
International legal systems assess the conjugal union within marriage and partnership differently. While some countries explicitly regulate the marital duty of conjugal union, in Germany and other European countries, personality rights and sexual self-determination are given priority.
Summary and Outlook
The conjugal union is a core aspect of German matrimonial law, primarily describing partnership-based and sexual cohabitation. It does not establish an enforceable legal obligation but does set forth an expectation for the partnership. Its violation can become significant in cases of separation and divorce. At the same time, the right to self-determination of spouses and protection from sexual coercion are of the highest priority under German law.
See also:
- Marital Community
- Year of Separation
- Maintenance Obligations
- Right to Self-Determination
- Life Partnership Act
Legal Sources:
- German Civil Code (BGB) § 1353 ff.
- German Criminal Code (StGB) § 177
- Life Partnership Act (LPartG)
Further Reading:
- Palandt, BGB Commentary, current edition
- Kalthoener/Büttner, Jurisprudence on Divorce
- Voppel, The Marital Cohabitation and Its Legal Implications
Through this in-depth presentation of the Conjugal Union in German law, the key legal aspects, developments, and implications are examined in detail and summarized comprehensively.
Frequently Asked Questions
Is conjugal union legally required within marriage?
Under German law, there is no explicit obligation for spouses to engage in a conjugal union. While older jurisprudence and legal commentaries refer to a so-called ‘right to marital intercourse,’ the understanding has evolved due to social developments and legislative changes (for example, with the enactment of the Law of Obligations Modernization Act and the equalization of spousal rights in the German Civil Code – BGB). Today, the right of each spouse to self-determination takes precedence. Therefore, an enforceable claim to conjugal union does not exist and would be legally inadmissible, especially considering the fundamental right to sexual self-determination (Art. 2(1) in conjunction with Art. 1(1) GG). However: a permanent and unjustified refusal of conjugal union can — depending on the individual case — be evaluated as a serious marital violation in the context of divorce law. For example, this can impact the year of separation or the issue of fault in a hardship divorce.
Does refusing the conjugal union have consequences in divorce proceedings?
An unjustified and permanent refusal of the conjugal union can be regarded as evidence of a so-called ‘breakdown of the marriage,’ which, pursuant to § 1565 BGB, may justify a divorce. In exceptional cases, a hardship divorce (§ 1565 para. 2 BGB) may be granted before the year of separation has elapsed if the refusal is considered a severe burden for the spouse. However, the courts always examine the specific individual case, taking into account reasons such as illness, psychological stress, or lack of mutual agreement, and carefully balance these according to the individual circumstances.
How do courts assess consent to conjugal union in the legal context?
German law applies an uncompromising ‘no-means-no’ principle regarding consent. Consent to a conjugal union is only given if it is provided voluntarily — that is, without pressure, threats, deception, or coercion. This follows in particular from the reform of sexual criminal law (§ 177 StGB), which makes any sexual act without effective consent a criminal offense. Even within a marriage or registered partnership, any coercion to engage in sexual acts is a crime and may be prosecuted as sexual coercion or rape.
Is there a right to sexual fidelity within the conjugal union in marriage?
German law does not provide for an explicit obligation of sexual fidelity; this results as an ancillary duty from the marriage relationship (§ 1353 para 1 sentence 2 BGB: ‘Spouses are obligated to marital cohabitation.’) However, a breach of sexual fidelity, that is, adultery, has not constituted a civil law ground for divorce since 1977, but is instead considered, under the principle of marital breakdown, as a possible aspect for dissolving the marriage. In individual cases, however, adultery may influence certain maintenance claims after divorce or, in particularly grave cases, justify a hardship divorce.
What role does incapacity to contract or an illness of one partner play for the conjugal union?
If a spouse is unable to enter into or continue a conjugal union due to illness or incapacity, this does not constitute a marital breach under the law. Rather, spouses are required to consider the partner’s health conditions. Refusal of conjugal union for health reasons cannot be classified as culpable violation of marital duties and thus cannot serve as grounds for divorce. In relevant proceedings, courts always assess the medical circumstances and the protection interests of the affected spouse.
Is procreation and having children a compulsory part of the conjugal union?
Neither the German legal system nor case law in family matters imposes an obligation to procreate or have children. The right to self-determined family planning (including deciding against having children) is part of each spouse’s personal rights. Refusing to procreate may at most affect the principle of marital breakdown in divorce law in individual cases, but does not by itself constitute grounds for divorce or liability.
Can the right to conjugal union be inherited or transferred?
The right to a conjugal union is a purely personal right, tied to the person of the respective spouse. Such rights and obligations are, as a matter of principle, not inheritable, transferable, or enforceable. Upon the death of a spouse, any legal basis for the conjugal union automatically ceases. Representation by authorized agents (e.g., within the scope of guardianship) is also excluded in the area of strictly personal rights (§§ 1896, 1904 BGB).
