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National Socialist Family Law Legal History Library National Socialist Family Law Legal History Library Volume 16 Studies in the History of Private Law Series Editors C.H. (Remco) van Rhee (Maastricht University) Dirk Heirbaut (University of Ghent) Matthew C. Mirow (Florida International University) Editorial Board Hamilton Bryson (University of Richmond) Thomas P. Gallanis (University of Iowa) James Gordley (Tulane University) Richard Helmholz (University of Chicago) Michael Hoeflich (University of Kansas) Neil Jones (University of Cambridge) Hector MacQueen (University of Edinburgh) Paul Oberhammer (University of Zurich) Marko Petrak (University of Zagreb) Jacques du Plessis (University of Stellenbosch) Mathias Reimann (University of Michigan) Jan M. Smits (University of Tilburg) Alain Wijffels (Université Catholique de Louvain, University of Leiden, CNRS) Reinhard Zimmermann (Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg) VOLUME 8 The titles published in this series are listed at brill.com/lhl National Socialist Family Law The Influence of National Socialism on Marriage and Divorce Law in Germany and the Netherlands By Mariken Lenaerts LEIDEN | BOSTON Cover illustration: Wedding Feldwebel (Sergeant) Seil, ’s Hertogenbosch (the Netherlands), April 1944. (Beeldbank WO2 – NIOD Institute for War, Holocaust and Genocide Studies, Amsterdam, the Netherlands). Cover illustration and figures designed by Henry Smaal grafisch ontwerp, www.henrysmaal.nl Library of Congress Cataloging-in-Publication Data Lenaerts, Mariken, author. National Socialist family law : the influence of National Socialism on marriage and divorce law in Germany and the Netherlands / By Mariken Lenaerts. pages cm. — (Legal history library ; volume 16) (Studies in the history of private law ; volume 8) Based on author’s thesis (doctoral - Maastricht University), 2012. Includes bibliographical references. ISBN 978-90-04-27930-8 (hardback : alk. paper) — ISBN 978-90-04-27931-5 (e-book) 1. Domestic relations—Netherlands—History—20th century. 2. Domestic relations—Germany— History—20th century. 3. Family policy—Netherlands—History—20th century. 4. Family policy— Germany—History—20th century. 5. National socialism. 6. National socialism—Netherlands. 7. Netherlands—History—German occupation, 1940–1945. 8. Law—Netherlands—German influences. I. Title. KJC1105.L46 2015 346.4301’609043—dc23 2014036727 This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1���-1��3 isbn 978-90-04-27930-8 (hardback) isbn 978-90-04-27931-5 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper. Voor papa ‘Lettertjes worden woorden, woorden worden zinnen, zinnen een verhaal . .’ ∵ ‘We can no longer afford to take that which was good in the past and sim- ply call it our heritage, to discard the bad and simply think of it as a dead load which by itself time will bury in oblivion.’ Hannah Arendt, The Origins of Totalitarianism, (Harcourt Brace Jovanovich Publishers, 1973), ix ∵ Contents Preface xi 1 Introduction 1 1.1 Family Law during the Nazi Era 2 1.2 Research Questions and Scope of this Research 2 1.3 Sources 4 1.4 Structure of the Research 5 1.5 Translation of Terminology 6 2 Family Policy According to National Socialism 7 2.1 Introduction 7 2.2 The Origins of National Socialism 8 2.2.1 A Volk Rooted in Nature 8 2.2.2 The Concept of ‘Racism’ in Völkish Thought 10 2.2.3 Social Darwinism and Racial Hygiene 12 2.2.4 From Racial Hygiene to Anti-Semitism 14 2.3 The Position of Jews in Germany 16 2.4 The Development of Family Policy in the First Half of the Twentieth Century 20 2.4.1 Germany during the Interbellum – the Weimar Republic 20 2.4.2 Population Policy before the Weimar Republic 23 2.4.3 Population and Family Policy during the Weimar Republic 26 2.4.4 Social Hygiene and Eugenics in the Weimar Years 32 2.5 The Nazi Era 35 2.5.1 Volksgemeinschaft – the Strength of a Nation 35 2.5.2 From Social Hygiene to Racial Hygiene 37 2.5.2.1 Compulsory Sterilisation 37 2.5.2.2 Abortion 40 2.5.2.3 Euthanasia 42 2.5.3 National Socialist Family Policy 43 2.5.3.1 Family and Marriage as ‘Germ Cell of the Nation’ 43 2.5.3.2 The Role of Women 45 2.5.3.3 Kinderreich versus Großfamilien 48 2.5.3.4 ‘Married Without Children’ 49 2.6 Conclusion 50 2.6.1 Pro-natalism versus Selection 50 2.6.2 Anti-Semitism 51 viii contents 2.6.3 National Socialist Pro-natalism 51 2.6.4 The Results 52 3 National Socialist Racial and Family Law in Germany 54 3.1 Introduction 54 3.2 Family Law in the Weimar Republic 55 3.2.1 Conclusion of Marriage 56 3.2.2 Annulment of Marriage 58 3.2.3 Dissolution of Marriage 60 3.3 From Weimar to Third Reich 64 3.4 March 1933–August 1935: Re-interpreting the Law 65 3.4.1 Conclusion of Marriage 65 3.4.2 Annulment of Marriage 68 3.5 The Nuremberg Laws 72 3.5.1 The Build-up to Amendments 72 3.5.2 The Reich Citizenship Law 76 3.5.3 The Law for the Protection of German Blood and German Honour 85 3.6 Keeping the Aryan Race Healthy – the Marriage Health Law 95 3.7 The New Matrimonial Law for the New Germany 106 3.7.1 The Build-up to a New Marriage Law 106 3.7.2 Marriage and Divorce Law in Austria and the Need to Adapt the Draft Revision 118 3.7.3 The Marriage Law of 1938 123 3.7.3.1 Conclusion of Marriage 124 3.7.3.2 Annulment and Termination of Marriage 129 3.7.3.3 Divorce 137 3.7.3.4 Exceptional and Transitional Provisions for Austria 150 3.7.3.5 Final Provisions 152 3.8 Conclusion 152 3.8.1 Germany 152 3.8.2 Austria 153 3.8.3 After the National Socialist Takeover 153 4 Racial and Family Law in the Netherlands during the German Occupation 158 4.1 Introduction 158 4.2 Dutch Family Law before the German Occupation 159 4.2.1 Conclusion of Marriage 161 4.2.2 Annulment of Marriage 170 4.2.3 Dissolution of Marriage 175 contents ix 4.2.3.1 Separation from Bed and Board 178 4.2.3.2 Divorce 180 4.2.4 Attempts to Revise Matrimonial Law 185 4.2.4.1 The 1886 Draft Revision of the Civil Code 186 4.2.4.2 The Big Lie 190 4.2.4.3 Discussion about the ‘Free Marriage’ 193 4.2.4.4 Eugenics and Matrimonial Law 197 4.2.4.5 Further Attempts at Amendments 200 4.2.5 The Application of the Nuremberg Laws between 1935–1940 206 4.3 Years of Occupation 214 4.3.1 Administrative and Legislative Competences during Occupation 214 4.3.2 Defining the ‘Jewish Question’ in the Netherlands 232 4.3.3 Adoption of the Nuremberg Laws 240 4.3.4 The Problem of Existing Mixed Marriages 258 4.3.4.1 The Privileged Mixed Marriage 258 4.3.4.2 Sterilisation of Mixed-Married Jews 262 4.3.4.3 Divorce 266 4.3.5 Attempts to Revise Dutch Divorce Law 269 4.3.5.1 Schrieke’s Draft of 1942 269 4.3.5.2 Reactions to the First Draft 277 4.3.5.3 Schrieke’s Second Draft of 1944 284 4.3.5.4 The Aftermath of Schrieke’s Drafts 292 4.4 Conclusion 294 4.4.1 Dutch Marriage and Divorce Law before the German Occupation 294 4.4.2 The Law of Occupation and the German Civil Administration in the Netherlands 295 4.4.3 Marriage and Divorce Law and the Position of Jews in that Respect during the German Occupation 296 5 Conclusion 300 5.1 National Socialism – the Family as Germ Cell of the Nation 300 5.2 National Socialism in Practice 301 5.3 National Socialist Family Law? 305 x contents Bibliography 309 Literature 309 Periodicals 321 Internet Sources 322 Archival Source List 322 Table of Legislation 323 Table of Cases 333 Preface This book grew out of a dissertation submitted to obtain the degree of Doctor at Maastricht University. The research began in the summer of 2006 and was completed in the summer of 2012. The thesis was successfully defended in Maastricht, the Netherlands, on 8 November 2012. Not long afterwards, the manuscript underwent a double-peer review by two Brill-appointed reviewers who offered valuable suggestions for its improvement. Any errors that remain are entirely mine. Over the course of the six years of research many people helped me and at times even proved to be instrumental in achieving my goal. First and foremost I would like to express my gratitude to my supervisors, Professor René de Groot and Professor Remco van Rhee, who truly introduced me to the world of academic research by allowing me to work independently whilst at the same time providing guidance on my research and my tasks as a junior researcher.
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