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The Position of the Marriage Law Commission of the Protestant Church in Germany on the Draft Version of a Family Law (December 1952)

The Protestant and Catholic churches were active participants in the West German debate in the early 1950s on reforming the provisions of the Civil Code that dealt with marriage and family law. The Protestant church took a skeptical view of the planned abolition of the husband’s decision-making authority in cases of conflict, because it saw in this the danger that the state might intervene in the family if the spouses could not reach an agreement, but it did not reject it outright. By contrast, Protestant church resolutely defended the authority of the father in questions relating to child rearing, since it supposedly derived from the paternal authority of God and the responsibility of men before God and thus could not be questioned.

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After the appearance of the memorandum by the Federal Ministry of Justice about a family law bill, the Protestant Church in Germany appointed a commission of lawyers, theologians, and representatives of the Protestant women’s organizations, which met continuously under the chairmanship of Professor Dr. Dr. Schumann at the Protestant Research Academy Christopherus Stift in Hemer/Westphalia. On the basis of the work of the Commission, the Council of the Church expressed its position on the main points of the memorandum in a detailed letter to the Federal Minister of Justice. In addition, after the publication of the government bill, the Commission expressed its expert opinion on additional individual legislative questions. Now that the government bill has passed the Bundesrat in the first passage and is before the Bundestag for adoption, the Commission sees itself compelled to present the results of its reflections in summary form.

I. Basic considerations
The Protestant Church is not part of the legislative bodies and therefore bears no formal co-responsibility for the upcoming change to the marriage and family law. For that reason, it also does not generally regard it as its task to make formulated proposals for these bodies. However, the Protestant Church cannot excuse itself from a factual co-responsibility, since the concerns and exigencies of state and church have always met on the ground of marriage by the very nature of the issue. We are dealing with two things here: first, the Church will have to make sure that the sphere for a Christian marriage is not constrained by state law when changes are made to the marriage and family law.

Second, the Church must be concerned that the essential structure of marriage as such, in which the Church recognizes a conserving order of God, is not endangered by legislative changes. All the more attention must be paid to this, because from an ethical and sociological perspective, a far-reaching process of dissolution of marriage and family has already been under way for some time. It may be doubtful whether this kind of dissolution can be effectively countered with legislative means and the judicial system; however, there can be no doubt that this dissolution could potentially be accelerated, even if unintentionally, by a change in the law and the administration of justice following it.

The revision of the family law necessarily expresses itself, for the most part, in the reorganization of the subjective rights of husband and wife. The Church is primarily interested in seeing that in the reorganization of such mutual subjective rights, which it also recognizes as necessary, the now endangered institution of marriage and family is preserved and, if possible, strengthened. Marriage is a union between spouses on the basis of sexual difference, into which they enter without having command over it. Husband and wife enter into it with the risk of their entire person and swear all-encompassing love and fidelity to each other. That is why marriage is contracted as exclusive and in principle indissoluble. A union that would be contracted from the outset as dissolvable would not be a marriage. Marriage and family are the most primal human communities. They are enveloped by the mystery of their origin, which the Christian attributes to Jesus Christ, but this mystery must also be respected by non-Christians if one wants to defend against the destruction of life. The laws of the state do not control this essential framework, but presuppose it.

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