By Holger Schmidt — 30 May 2026

Marriage, Simplified

German marriage law treats the institution as a delivery system for social policy. What would remain if that freight were removed — and why would the result be stronger, not weaker?

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German marriage carries too much freight. Property law makes it an instrument of wealth redistribution. Procedural law requires that even two people who agree on everything must pass through the family court. Neither function is rooted in the nature of the institution. Both reflect a legislative choice to route social policy through marital status — treating marriage as a conduit rather than a commitment.

This is not an argument against marriage. It is an argument for a more honest one. Removing social policy from the institution does not weaken it. It returns it to what it should be: a decision between two people, not a policy infrastructure.

The question is concrete. What would marriage still carry if that freight were removed? And who would carry it instead?

What German Marriage Currently Carries

Three functions have been built into German marriage law without the nature of the institution requiring any of them. None belongs there.

Marital property equalisation (Zugewinnausgleich). Under § 1363 para. 1 of the Civil Code (BGB), the community of accrued gains applies automatically from the moment of marriage — without a prenuptial agreement, without any active decision. The mechanism: the spouse who accumulated more wealth during the marriage shares half the difference with the other upon divorce. Under § 1373 BGB, accrued gain is the amount by which final assets exceed initial assets; under § 1378 para. 1 BGB, the entitled spouse receives half the surplus as a claim — in practice most often the jointly acquired property or the main earner's occupational pension. The house bought during the marriage. The savings accumulated over two decades. The business interests. All of this protects the spouse who reduced or abandoned paid work for caregiving. The protective purpose is legitimate. The instrument only activates at divorce — and does nothing for the economically disadvantaged spouse while the marriage continues.

Pension equalisation (Versorgungsausgleich). § 1587 BGB in conjunction with the Pension Equalisation Act divides pension entitlements accrued during the marriage equally between spouses upon divorce. The structural logic is the same as for marital property equalisation: compensation at the end of the marriage for what arose during it. This creates its own problems. Those who are not married receive nothing — retirement security is tied to marital status, not to work performed.

Income splitting (Ehegattensplitting) is not revisited here — the analysis is in The Family Paradox. One observation suffices: it subsidises single-earner households, not children.

All three instruments serve a social purpose. None requires marriage as its delivery mechanism. Childcare periods under § 56 para. 1 of the Social Code, Book VI (SGB VI) are already credited as mandatory contribution periods in the statutory pension system — approximately three pension points per child, financed from taxation, without contributions by the caring parent. That is the right approach. It ends too soon. § 57 SGB VI extends some protection as childcare recognition periods up to the child's tenth birthday — but at one third of the value and only for lower earners. The architecture of a social-law-based protection for care work exists. It does not reach far enough.

The Thinner Institution

What remains when those functions are removed? A contract between two people: property arrangements of their own choosing, mutual rights and obligations, inheritance rights, name rights, parental authority, the legally recognised form of a shared life. No tax optimisation. No social-policy prosthetic.

That is not a weaker marriage.

The community of solidarity — the willingness to stand by each other — survives this reform. What disappears is the coercion. When someone marries primarily because the tax assessment makes it advantageous, or because divorce consequences depend on a specific property architecture, that is fiscal calculation, not commitment. A marriage resting on nothing but the choice of both parties is not a lesser marriage. It is one that earns the name.

The expected objection: this reform is hostile to marriage. The relationship is inverted. Loading marriage with misaligned incentives — tax advantages unrelated to children, or protective functions that only activate at failure — does not strengthen the institution. It introduces motivations foreign to it. This is not an empirical finding about divorce rates. It is a normative argument: a marriage resting on false incentives is a less honest one — regardless of how long it lasts.

Anyone who takes marriage seriously as a free choice should stop using it as a policy channel. The two are incompatible.

Social insurance law knows the individual who did the work. Family law knows only the couple. Where someone is economically disadvantaged by caring for children or elderly relatives, the entitlement belongs to them as a person — not as the spouse of someone else. This shift is not a technical correction. It is a different answer to the question of which work society recognises and through whom.

Three Reforms

Procedure, property, pensions — three problems, three reforms.

Administrative Divorce for Uncontested Cases

Two people have separated. No children. No property dispute. Full agreement. Under current German law they must nonetheless petition the family court and instruct at least one solicitor — § 1564 BGB requires a judicial decision; § 114 para. 1 of the Act on Proceedings in Family Matters (FamFG) requires legal representation in matrimonial proceedings. The marriage is presumed irretrievably broken after one year of separation with mutual consent under § 1566 para. 1 BGB. The court requirement in this scenario is not protection. It is a barrier to a decision the parties have already made.

France resolved this in 2017. Loi n° 2016-1547 of 18 November 2016 has permitted mutual consent divorce without court proceedings since 1 January 2017. The protective architecture was not reduced — it was rebuilt: both spouses must each instruct their own separate solicitor, which is in fact stricter than the German regime that permits a single-solicitor divorce in uncontested cases. Both solicitors jointly draft a divorce convention. The spouses have fifteen days to reconsider. The agreement is then filed with a notaire, who gives it legal force and enforceability. No judge, no hearing. One exception: if a minor child requests to be heard by a court, the judicial procedure applies.

The model has been operating for eight years. Anyone who rejects it for Germany must explain what protective function a judge serves in a case with no children, no property dispute, and full mutual consent. That answer is difficult to give.

Separated assets have a poor reputation in Germany. That reputation is not without grounds. This section explains why — and under what conditions the reform proposal holds nonetheless.

The community of accrued gains protects the economically weaker spouse. Someone who has reduced or abandoned paid work for caregiving builds no wealth during those years. The equalisation under § 1378 para. 1 BGB ensures that half the resulting wealth gap is bridged at divorce. This protection falls disproportionately on women: the gender pension gap — the gap in personal pension income between men and women — amounts to approximately 40 per cent in Germany, according to the German Women Lawyers' Association (2023). It is measurable.

Switching to separated assets as the statutory default would eliminate this protection for non-pension wealth. That would be a mistake. The following reform step must be implemented simultaneously and with equal weight.

Compensation for care work must migrate from divorce law into social law — and be substantially expanded there. The instrument exists. § 56 SGB VI credits childcare periods for the first three years of a child's life as mandatory contribution periods: approximately three pension points per child, financed from taxation, without contributions from the caring parent. § 3 SGB VI provides some contribution-equivalent protection for elderly care, but with significantly narrower reach.

The reform reads as follows: extend that full protection to all years of caregiving, not only the first three. Credit care of elderly relatives on the same principle. Move the protection needs of care workers from civil divorce law into social insurance law, where entitlements arise as individually earned rights — regardless of whether the marriage survives. That is the decisive shift: away from protection that only activates when a marriage fails, towards protection that accrues as the work is performed.

Separated assets as the statutory default apply from the date of enactment to new marriages only. Existing marriages remain under the community of accrued gains — without any obligation to act, without any deadline. No action is needed. A voluntary switch requires the consent of both spouses, as with the pension equalisation reform below. The property regime follows the date of the marriage, not the date of a possible remarriage.

Pension Equalisation — Phase-Out and Transition

The pension equalisation serves two protective functions. They require different answers.

Care-related pension shortfalls — the parent who reduced or abandoned paid work for childcare — are resolved by the expanded social-law architecture. § 56 SGB VI, extended to seven years until the start of compulsory schooling, makes pension equalisation redundant for these cases. After school enrolment, staying at home is a choice. Not a hardship, not a protection gap. These partners are adults. The state's duty of protection ends where free choice begins — and that begins at the latest when the child starts school. This holds where the childcare infrastructure delivers. Where full-day schooling is unavailable, so is the freedom to choose. That is not an objection to the principle — it is its precondition, and a separate failure of family policy.

The general employment divide — one spouse full-time, the other part-time for other reasons — cannot be addressed by § 56 SGB VI. Here a transition is needed without expropriation.

New marriages from the date of enactment: no automatic pension equalisation — those who want it agree to it in a marriage contract. Existing marriages remain fully under the old law. No obligation, no forced conversion. The 45-year-old who has built her life around a specific expectation of retirement security is not affected. The same applies to the 50-year-old part-time worker whose employment history leaves no time to build independent pension entitlements. For her, the old law remains in force — not as a concession, but because expropriation is not a reform instrument.

For existing marriages, a voluntary path into the new system is available with mutual consent, offering two incentives: enhanced SGB VI credits for contributed childcare years and an expanded deferred-tax space for private retirement savings, the duration to be set by the legislature — a plausible range would be ten to fifteen years. Those who switch give up the automatic pension equalisation. In return, they gain greater independent pension entitlements and greater tax flexibility.

That is not a compromise. It is a cleaner model.

The Constitutional Constraints

Article 6 para. 1 of the Basic Law (Grundgesetz) places marriage and the family under the special protection of the state. This guarantee includes an institutional guarantee (Institutsgarantie): the legislature may not abolish the core and the defining characteristics of the constitutional understanding of marriage. The Federal Constitutional Court confirmed this in BVerfGE 80, 81 (92). The guarantee protects the institution. Not every statutory rule that shapes it.

The property regime belongs to the configurational level. The community of accrued gains entered into force in 1958 under the Equal Rights Act of 18 June 1957; it is statute law, not constitutional mandate. Changing the default property regime engages Article 6 no differently than any other reform of family law that reorders property arrangements. The divorce procedure under §§ 1564 ff. BGB and § 114 FamFG is procedural law with legislative discretion. Both reform areas sit well below the threshold at which Article 6 would raise objections.

The pension equalisation reform faces an additional constitutional constraint: Article 14 GG, which protects property rights. Someone who has worked towards a particular entitlement over many years has a financial position that may claim constitutional protection. That is not a concession. It is the constitutional reason why existing marriages are not converted retroactively.

There is a thought that goes beyond rebutting the objection. The institutional guarantee protects marriage as a freely chosen union. A legal order that subsidises marriage through misaligned fiscal incentives, or protects it through procedural requirements that serve no purpose in consensual separations, does not protect that union. It instrumentalises it. In this reading, freeing marriage from its role as a social-policy channel strengthens its position under Article 6. Not the reverse.

These reforms do not alter why people marry. They change what the state does through marriage — and what it no longer does.

Those who wish to weaken marriage should leave everything as it is. The freight remains. The decision to marry stays fiscally distorted. The protection for care workers stays tied to the moment of marital failure. Those who wish to strengthen it should separate: social policy into social law, procedural law into the twenty-first century, and the decision to marry into the hands of those who make it.

What would no longer exist: marriage as an economic necessity for those who perform care work. What would remain: an institution resting on a choice.

Published: 2026-05-30