Reform of family law: planned introduction of a community of responsibility

At the beginning of the legislative period, the Federal Government announced a comprehensive reform of family law and set itself the goal of adapting family law to social reality and extensively modernising it.

Among other things, this reform will include legislation on naming, maintenance, parentage and custody. We had already reported on the latter and the changes planned in this regard in our blog post the week before last. This will be supplemented by the planned introduction of an entirely new legal institution - the so-called community of responsibility. This will enable adults to assume responsibility for each other irrespective of marriage or partnership and will provide corresponding legal protection.

Federal Minister of Justice Dr. Marco Buschmann has now presented a key points paper that sets out and explains the main features of the legal institution.
 

1. Prerequisites and main features of the community of responsibility

The community of responsibility may consist of a maximum of six persons of legal age and legal capacity. Multiple membership in different communities of responsibility will not be possible. Spouses will be able to form a community of responsibility individually or together with other persons, but not a bilateral community with their spouse. 

The contract on the community of responsibility will require notarisation in order to be valid, which will ensure adequate consultation and clarification.

A further prerequisite for establishing the community is the existence of an actual personal relationship, albeit that this will not be checked by the state. 

In order to ensure the greatest possible flexibility, changes will be possible at any time by mutual agreement in notarised form and, in addition, unilateral termination without the observation of any deadlines.


2. Legal consequences and effect of the community of responsibility

The legal consequences and effects of the community of responsibility are divided into different levels. This will allow the contracting parties to flexibly structure the contract and adapt it to their wishes and needs:

The basic level of the community of responsibility merely stipulates that contractual partners are to be taken into consideration in the selection of a legal guardian (Section 1816 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]) and that the possibility of organ donation exists between the contractual partners (Section 8 of the German Transplantation Act [Transplantationsgesetz, TPG]).

It will also be possible to choose additional modules:

• Right to information and representation in health matters
• Obligations in the event of cohabitation: An element of this module will be that the respective persons undertake to temporarily allow the use of their home if the cohabitation is terminated. Secondly, each contractual partner will be able to purchase basic foodstuffs and household items with effect for and against the other contractual partners. In addition to this, the contractual partners are subsequently to make arrangements regarding the internal distribution of costs.
• Care and welfare: It is still being examined whether and to what extent a leave of absence from work or financial support based on the German Caregiver Leave Act [Pflegezeitgesetz, PflegeZG] can be claimed in order to provide care services - although there not going to be any mandatory obligation.
• Community of accrued gains: In the case of unmarried couples with a bilateral community of responsibility, it will be possible to order the application of the rules on the marital equalisation of accrued gains, albeit without application of the tax advantages. This means that any equalisation claim would be subject to inheritance and gift tax.

It has been made expressly clear that the community of responsibility does not give rise to any tax benefits and that no right of residence can be obtained. The legal institution is also not intended to have any legal effects on inheritance law, naming rights or the legal relationship with children of the contractual partners.

3. Outlook

It remains to be seen whether and in what form a community of responsibility will be introduced. Specific draft legislation first needs to be drawn up and presented and the legislative process subsequently completed.

In particular, the fact that no tax relief is planned is likely to be disappointing to some. It remains to be seen whether this legal institution will actually be used in practice in the future after its introduction and whether this will result in advantages or simplifications for legal transactions.

In view of the fact that many of the proposed effects can already be achieved through corresponding powers of attorney or contractual agreements, doubts certainly exist as to the legal scope of application of the community of responsibility.

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