EVERS v. GERMANY
Inadmissible
Matti Pellonpää
The applicant, born in 1959, is a German national and residing in Wattenbek. In the proceedings before the Court, he is represented by Mr. Traulsen, a lawyer practising in Kiel. On 29 November 1994, in the context of divorce proceedings before the Itzehoe District Court (Amtsgericht), the applicant and Mrs F.E., his wife, concluded a maintenance agreement. Under the terms of this agreement, the applicant committed himself to pay maintenance for his two children Jankl and Yorrick, born in wedlock in 1990 and 1992, in the monthly amount of DEM 241 each, and for Mrs F.E. in the monthly amount of DEM 836. The agreement also indicated the considerations underlying the calculation of the maintenance payments, in particular the applicant’s monthly net income amounting to DEM 2624 and his personal financial needs (Eigenbehalt). On 29 October 1995 the applicant, represented by counsel, applied to the Itzehoe District Court for legal aid with a view to institute proceedings against Mrs F.E., claiming that his maintenance payments for her as well as Jankl and Yorrick be reduced to zero as from 1 November 1995. He submitted that he had remarried in the meantime and that, following the birth of his daughter Pauline in July 1995, he had agreed with his wife to take parental leave from October 1995 to July 1998. His only income was therefore an educational allowance. On 13 December 1995 the Itzehoe District Court dismissed the applicant's request for legal aid on the ground that the intended action lacked sufficient prospect of success. In its decision, the court stated that the action was inadmissible to the extent that the applicant's maintenance obligations towards his children Jankl and Yorrick were concerned, as Mrs F.E. was not the proper defendant in this respect. As regards his claim that his maintenance payments for Mrs F.E. be reduced, the court found that the applicant could not invoke his choice concerning the repartition of roles in his new family and resulting reduction of his income vis-à-vis Mrs F.E. In this respect, the court noted that the applicant was obliged to pay maintenance to Mrs F.E. on the ground that she took care of their two minor children. The court, referring to the case-law of the Federal Court of Justice (Bundesgerichtshof), stated that, for the purposes of maintenance, the divorced spouse only had to accept the termination of occupational activities in order to care for a new child, if such a repartition of roles had considerable advantages for the new family. The decisive factor in this respect was the overall amount of the family income. However, the solution envisaged by the applicant did not change the family income. It was only advantageous if his maintenance obligations towards Mrs F.E. and his minor children Jankl and Yorrick would be set aside. In such a situation, the applicant could not evade his primary maintenance obligations towards Mrs F.E. as well as Jankl and Yorrick. On 22 January 1996 the Itzehoe District Court, upon the applicant’s appeal (Beschwerde), confirmed its decision of 13 December 1995. On 28 February 1996 the Schleswig-Holstein Court of Appeal (Oberlandes-gericht) dismissed the applicant's appeal. The Court of Appeal found that the impugned decision was consistent with the constant case-law of the Federal Court of Justice. According to the Court of Appeal, Mrs F.E. was entitled to maintenance under section 1570 of the Civil Code (Bürgerliches Gesetzbuch) in order to be in a position to take care of the divorced spouses’ minor children. Referring to section 1582 of the Civil Code, the Court of Appeal observed that, for the purposes of maintenance matters, a divorced spouse taking care of minor children took precedence over the second wife. According to section 1570 of the Civil Code, a divorced spouse can claim maintenance from the other divorced spouse, as long as and to the extent that, taking care of the spouses’ child, he or she cannot be expected to take up gainful occupation. Section 1581 provides that maintenance obligations of a divorced spouse may be reduced in case that the divorced spouse, given his or her earned income, assets and other financial obligations, would risk not to dispose of sufficient own financial means. In determining the maintenance entitlement of a divorced spouse under section 1581, the divorced spouse takes, as a rule, precedence over a new spouse (section 1582). On 7 May 1996 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde). Meanwhile, on 1 April 1996 the applicant had accepted part-time occupation of twelve hours per week, with a salary of DEM 1,446.