Is it ‘grossly unfair’ if a husband has to pay maintenance to his separated wife who has a close relationship with a homosexual man? (Judgment of the Federal Court of Justice of 20 March 2002)

Abstract

On 20 March 2002, the XIIth Senate of the Bundesgerichtshof (BGH - Federal Court of Justice), the highest appeal court in civil law matters, was called to decide a case in which a separated husband had made an application to change a periodical maintenance payment order, arguing mainly that his wife no longer living with him had a close relationship with another man and that it was therefore an undue hardship to him, in the sense of para. 1597 no. 7 Bürgerliches Gesetzbuch (BGB - German Civil Code), to continue periodical maintenance payments at all. The separated wife argued that she did not cohabit with the man and had no intimate sexual relationship with him, since he was homosexual, that therefore no marriage-like relationship existed and maintenance payments should continue unchanged, since this obligation was no undue hardship towards the obliged spouse. The Federal Court of Justice judged in the last instance that the decision of the lower court, which had reduced the maintenance obligation, was correct, since the facts showed that a marriage-like relationship between the separated wife and her close friend existed; whether or not they had intimate sexual relations did not matter.