The parties married in 1941. On 24 March 1949 a child was born. Thereupon the plaintiff husband petitioned for a divorce, the wife cross-petitioned, and the marriage was dissolved on the ground that both were to be blamed, in the case of the wife because she had committed adultery. After the divorce, the plaintiff sought and obtained a decree to the effect that the child was illegitimate.

The plaintiff now claimed DM 1130.05 from the defendant representing the legal costs of the bastardy proceedings.

The Court of First Instance rejected the claim. An appeal to the Court of Appeal of Schleswig and a second appeal to the Bundesgerichtshof were without success for the following

Reasons

The Court of First Instance and the Court of Appeal have rejected the plaintiff’s claim for damages representing his costs arising out of the bastardy proceedings on the ground that civil law does not allow a claim for damages in respect of such costs against a spouse who is guilty of a breach of fidelity.

I. The question was already debated at the time when the Civil Code was being drafted as to whether a spouse who was not the guilty party to a divorce should be allowed compensation in respect of those losses suffered by him as a result of the other spouse’s dereliction of marital obligations. The Report of the Committee drafting the Civil Code (Motive) [reference] shows that the answer at the time was negative, principally because it was thought that such claims were incompatible with the nature of marriage and that to allow them would be tantamount to a penalty for a divorce; the latter had been deliberately omitted from the Civil Code contrary to its treatment in previous laws. The Reichsgericht adopted this view in its decision reported in [reference] and it was mainly followed by the literature and by the practice of the courts [references].

After the collapse in 1945 an opinion to the contrary made itself felt [references].

II. This Division considered as early as 21 March 1956 [reference] the question as to whether in addition to the claims which the civil law makes available in its provision on family law for the violation by a spouse of the duty of fidelity, further claims can be based on such a violation. This Division gave a negative answer in so far as the application of § 823 BGB was concerned. Although this decision has been criticized, this Division, having examined the question afresh, sees no reason for abandoning this practice. The following are the principal considerations that apply.

1. Civil law contains numerous provisions dealing with the duties arising from marriage and with their contravention [references]. Their specific regulation indicates a general principle that thereby the question was to be solved exclusively and finally as to what are the consequences of a violation of marital obligations.

2. The conclusion is in accordance with the ideas aired at the time when the Civil Code was drafted and as they are set out in the Report of the Committee drafting the BGB [reference].

3. That the provisions in the title on family law are exhaustive is borne out by the consideration that the regulation of the patrimonial relations between spouses would lose much of its meaning, if §§ 823 ff. BGB were to apply. For the duty to pay damages in accordance with the rules on obligations would much exceed the duties laid down by the provisions regulating family law. As a result the provisions regulating family law would become largely superfluous.

4. It is true that the conclusion of a marriage has consequences bearing on family law as well as on the law of property. In principle, however—in accordance with the principle which also found expression in § 888 II of the Code of Civil Procedure—a distinction must be drawn between the duties of the spouses which concern family law and those which involve proprietary rights resulting from the marriage. Those which are purely in the nature of family law, such as the duty to live together and the duty of fidelity, are confined to conduct in accordance with these duties, and if any consequences are to accompany their violation, they cannot be found in the law of obligations; instead, having regard to the nature of the marriage, they must be contained in the provisions of family law proper dealing with such violations. It is incompatible with the nature of marriage as well as with present-day moral sentiment which has not changed in this respect since the time when the Civil Code was drafted, to equate marriage with a transaction in the nature of property law.

5. It is true that in principle an interpretation of the law must be approved which serves to maintain a marital community in keeping with the solemn vows of marriage. This Division has constantly emphasized that aspect, particularly in its practice dealing with § 48 of the Marriage Act. However, to apply the rule on damages of the law of obligations to conjugal misconduct leads to undesirable results.

(a) First of all, an award for damages for a violation of matrimonial duties would equal a penalty in practice. For example, as a result of the unjustified refusal of the wife to cohabit, the blameless husband is forced to rely on a paid help to run the household, and the court gives judgment against the wife on the ground of a violation of § 1353 BGB to make monthly payments to the husband which correspond approximately to the cost of the help until cohabitation is resumed. This would mean in effect that by means of fines the wife is being compelled to resume cohabitation, with the difference that the money does not accrue to the State, as it does in the cases enumerated in § 888 I of the Code of Civil Procedure, but to the husband, and that in addition § 888 I of the Code of Civil Procedure would cease to have effect.

(b) It must be admitted that there are no reasons in equity why a guilty spouse should not bear the costs of proceedings to contest the legitimacy of the child conceived in adultery. The extent of the liability to damages of the guilty spouse is not, however, limited to this aspect, for this liability can only be either recognized or denied in principle. Consequently, if recognized, the blameless spouse could demand in accordance with the principle laid down in § 249 BGB to be placed in every respect in the same position as would have existed if the occurrence which gave rise to the claim for damages, and therefore also the ensuing divorce, had never taken place. The blameless party would be entitled not only to adequate or equitable maintenance by the guilty spouse but to a sum which enables him, contrary to the provisions on maintenance in §§ 58 and 59 of the Marriage Act, to maintain the same living standard as if the marriage still subsisted. In addition the blameless spouse would be entitled on the death of the guilty spouse to be treated as regards the estate of the latter as if the marriage had still existed at that time, leaving open the question as to whether in relation to the estate the blameless spouse is to be regarded as an heir or only as entitled to a compulsory portion (Pflichtteilsberechtigter).

(c) Among those who hold that claims for damages lie, some deny that they lie against a guilty spouse, among them in particular Schwab, while Boehmer, modifying his previous opinion [reference], now wishes to restrict it to the situation where the marriage subsists [references]. Leaving aside the consideration that the law of obligations hardly supports the distinction introduced by Boehmer, the refusal to allow a claim for damages against the guilty spouse is ineffective as soon as the co-respondent is sued for damages; the latter, who would be jointly liable in tort together with the guilty spouse, could claim a contribution from the guilty spouse under § 426 BGB. In this connection the question would arise further as to whether § 254 BGB may be applicable with the result that possibly the guilty spouse must shoulder the greater part of the damages or even the total amount.

(d) To allow a claim for damages may lead to the abuse of the grounds for divorce for base motives in order to make personal gains, a not unusual phenomenon, as the Report of the Committee drafting the Civil Code pointed out.

(e) Another consequence will be in all probability that the number of lawsuits between spouses will increase greatly. In many instances the proceedings for divorce and those for maintenance, if any, will be followed by an action for damages.

(f) In the proceedings for damages the need will arise frequently to make, first of all, exact findings concerning the history of the marriage and the conduct of the spouses. For contrary to the opinion of Boehmer it is common experience that in many cases a divorce is granted not on the ground of adulterous relations with a third party, but despite the existence of such relations for other reasons connected with the person of the guilty spouse alone, such as persistent refusal to comply with matrimonial duties.

(g) Apart from the fact that such suits for damages are prosecuted in a manner which is far from pleasant and constitute an excessive burden for the parties and the courts, the accusatorial character of the proceedings does not offer the same degree of reliability as do divorce proceedings.

(h) Finally, as the Report of the Committee drafting the Civil Code has equally pointed out, the assessment of damages in respect of the loss caused by the adulterous conduct and by the divorce must always remain more or less arbitrary. This, however, makes the law extraordinarily uncertain.

6. Boehmer’s reference to § 893 of the Code of Civil Procedure does not convince. This provision does not create an independent right to damages but only makes it clear that the right to damages existing according to the rules of civil law is not affected by the rules on levy of execution laid down by the Code of Civil Procedure [reference].

III. The foregoing considerations, which lead to the rejection of a claim for damages based on § 823 BGB, apply also if it is alleged, as indeed it is in the present case, that the adulterous conduct constitutes an intentional infliction of damage contrary to decent morals. It is true that as early as in its decision in [reference] the Reichsgericht had admitted that a married woman may be liable under § 826 BGB, and in its decision in [reference] it has accepted the application of § 826 BGB in a case where a married woman had committed adultery resulting in the birth of a child, a consequence which the wife and the co-respondent had considered possible. The practice of the courts and the literature have also followed this opinion of the Reichsgericht to a considerable extent [reference].

The present Division cannot accept this view. It is contradicted by the fact that the provisions dealing with family law regulate exhaustively the consequences of the violation of matrimonial duties and of a divorce. Instead this Division agrees with the opinions of Giesecke [reference] and of Boehmer [reference] that, if claims for damages for violation of marital duties brought on the basis of § 823 BGB are to be rejected having regard to the provision dealing with family law, the same must apply to claims brought on the strength of § 826 BGB. This Division has already held in its decision [reference] that provisions dealing with family law may also exclude the application of § 826 BGB.

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