BRGÖ2018 BeiträgezurRechtsgeschichteÖsterreichs MarikenLENAERTS,Maastricht TheinfluenceofNationalSocialismondivorce lawinAustriaandtheNetherlands*= Thisarticleprovides=acomparativeoverviewoftheinfluencesofNationalSocialismondivorcelawinAustriaand theNetherlandsbetween1938(Austria)/1940=(theNetherlands)=and1945.Oneoftheprimarygoals=ofNational Socialismwastheestablishmentofaracially‘pure‘Volksgemeinschaft.Tothatend,marriagesthat,forwhatever reason,werenolongerproductive,=orwhichwouldleadtothemingling=ofAryanbloodandracially“inferior”blood shouldbedissolved.ThereforetheNationalSocialistssubstantiallyrevisedGermandivorcelaw,whichwasintro8 ducedinAustriain1938aswell.This1938MarriageLaw,albeitsubstantiallyalteredanddenazified,stillservesas= thebasisofAustrianmarriageanddivorcelaw.IntheNetherlands,regardedas=muchabrothernationtoGermany= asAustriawas,attemptsweremadeduringtheoccupationtoreviseDutchdivorcelaw,partlybecauseitwasgener8 allybelievedthatthegroundsfordivorcehadtobewidenedsomewhat,partlytoattuneDutchdivorce=lawtoNa tionalSocialism.However,theserevisionswereneverenacted. Keywords:Austria–divorcelaw–Germany–NationalSocialism–theNetherlands= = 1.Introduction isedasan“annexation”,asannexationisauni lateralactbytheconqueringstate,precededbya It is beyond questioning that the National So military conquest. Through annexation, the en cialist period shook Europe while it lasted and emy state ceases to exist, thereby ending the leftitsmarkafterithadbeenended.Thisarticle= war. This is called subjugation. In this respect, willtrytoanswerthequestionhowdivorcelaw= the conquering state= acquires enemy territory wasinfluencedbyNational=Socialismin=Austria and de jure sovereignty through conquest fol and the Netherlands.= The= choice= for= these two= lowedbysubjugation.1=AlthoughGermanycer8 countriesmightseemarbitrarybutthey=provide= tainly put considerable military pressure on for an interesting comparison, given the coun Austria,thispressuredoesnotqualifyas“con tries respective positions= with regard= to Nazi quest”. Furthermore, the incorporation= was a= Germany. Both countries were regarded as bilateralactalthough,again,Austriawasunder= brother nations of Germany, with its people= pressure,however,notonlyfromGermanybut sharing the same blood. The National Socialist= alsofromwithin.2= mode of operation with regard to these two= countrieswasdifferent,though. ======================== AsofMarch1938,Austriawasincorporatedinto= *This article is a shortened and amended version of Germany.= This incorporation is generally re8 (part)ofmybook:LENAERTS,NationalSocialist=Fami ferred= to as “Anschluss”,= which is somewhat= ly Law, which was published by Brill in December euphemistic,orinEnglish,annexation.Howev 2014. 1OPPENHEIM,InternationalLaw518–519. er, it is debatable whether the incorporation of 2BUKEY,Hitler’sAustria25–39. Austria into Germany can= indeed be character http://dx.doi.org/10.1553/BRGOE20181s102= = TheinfluenceofNationalSocialismon=divorcelawinAustriaandtheNetherlands 103 The Netherlands was not incorporated into the 2.Germandivorcelaw GermanReich,butoccupiedbyGermanmilitary= beforetheNazitakeover forces in May 1940. Eight days after the inva sion,Hitlerreplacedthemilitaryadministration= With regard= to the= dissolution of marriage, intheNetherlandswitha=civilone.=Atthattime churchdoctrineand=themoremodernnotionof occupations were governed by the Regulations= manasanindividualbeingwithhisownneeds Respecting the Laws and= Customs of War on (whichhademergedduringtheEnlightenment)= Land of 1907. These determined in Article 43 did not conform. According to the doctrine of that the occupant had “to= take all measures= in theCatholic=Church,marriagewasasacrament hispowertorestore,andensure,asfaraspossi nottobeseparatedbyman.However,according ble,publicorderand=civillife,whilerespecting, to the Enlightenment doctrine of man as an= unlessabsolutelyprevented,thelawsin=forcein individual, every person had his or her own= the occupied= country”. It is therefore debatable soul; two individual souls could as= a couple whether the German occupying forces were at share their lives but might at a given= moment allauthorisedtochangefamilylawintheNeth notbeabletolivetogetherany=longer.=German= erlands.= divorce law during the Weimar Republic was= In order to see whether divorce law in= Austria based on a compromise between these two andtheNetherlandswasinfluencedbyNational doctrines. The German state considered= Socialism,we=firsthavetolookatthesituation= marriage the germ cell of the social order and in Germany as the “home base” of National therefore had its own= interests in= preventing 4 Socialism.3=Therefore,thisarticlewillfirstbriefly divorce. =Theirconviction=wasthatthestatehad explain the German rules concerning divorce to recognise the possibility of divorce for cases before the National Socialist assumption of wherea=marriagecouldno=longerfulfilitssocial power,andthekeyideas=ofNationalSocialism tasks,= but that divorce= could never be an= withregardtotheconceptofmarriage;then,the= individualaffair.Therefore,divorcewas=largely= MarriageLaw of1938and= its consequencesfor= grounded on= the guilt principle (Verschuldens Austria will be explained. Subsequently, the prinzip),whichmeantthat,exceptincasesofa= Dutchrulesconcerningdivorcethatwereappli mental disorder, marriages could only be cable= before= the German occupation= will= be divorced if the summoned partner had= dealt with, followed by the attempts to revise committed some wrong. However, since the= theserulesduringtheoccupation. beginning of the 1920s, the question had been discussedwhethertheguiltprincipleshouldbe replaced with more objective grounds for divorce,thatis,thequestionwhethera=marriage had irretrievably broken down (Zerrüttungs prinzip).5= TheGermanCivilCodedistinguishedtwotypes ======================== of grounds for divorce, absolute and= relative= 3 Although National Socialism does not find its ori ones. In= the case= of absolute grounds,= a judge ginsexclusivelyinGermany,=wecanregardGermany was obliged to pronounce= the divorce without as its “home base”, as this was the first country in whichtheNationalSocialistscametopower.Germa furtherjudgingthemarriage.Absolutegrounds nywasthereforethefirstcountryinwhichrulesregu ======================== lating the nation’s behaviour could substantially be= 4MITTEIS,Familienrecht(1923)15. influencedbyNationalSocialism. 5MITTEIS,Familienrecht(1931)26–27. =104 MarikenLENAERTS= for divorce were adultery= and crimes against regardtothe=perceptionofthestate,thefamily morality (Ehebruch und= Sittlichkeitsdelikte, andtheindividual.= §1565), crimes against life or cruelty (Lebens The concept of a “state” was renounced by the nachstellung, §1566) and desertion with National Socialists, especially the way= it had= malicious intent (bössliche Verlassung, §1567). manifested itself during the Weimar period. Foritsdefinitionofadulteryandcrimesagainst According to the National Socialists, the indi morality,§1565referstotherelevantsectionsin vidual had become too important during this the Penal Code.6= Crimes against morality period,whichhadledtoegocentrism=andmoral= included bigamy (§171 StGB) and perverse= decline.8= Instead of a state, which was centred illicit sexual acts (§175 StGB), such as sodomy upontheideaofagroupofindividualssharing= andbestiality.Culpablebreakdown(schuldhafte a common language and= living under constant Ehezerrüttung, §1568) and mental disorder governmental= supervision,9= a= “Volksgemein8 (Geisteskrankheit, §1569) were considered schaft”hadtobecreated,10=inwhichthepublic relativegroundsfordivorce.Mentaldisorderas interestwouldprevailovertherightsandinter agroundfordivorcedidnotfallundertheguilt ests of the individual. Every person, every principle, but= was acknowledged as a= cause of member of the Volk should consider himself a= the permanent breakdown of a= marriage. The= memberofthewhole,whoserightswerelimited= mentaldisorderhadtobecomplete,not=partial, by the interests of the community.Man should and it had to last for a= minimum= of three notbeselfsufficient,butservethecommunity.11= consecutive years, leading to a permanent= Although=the=termVolksgemeinschaftsomehow disruption of the “mental community”. embodied the National Socialist legal idea, it= Culpable breakdown,= however, did fall within= cannot be defined= exactly. It= can best be com the scope of the guilt principle, as the= paredwithabodythatconsistsofseveralindis summonedpartnerhadtobefoundguiltyofthe pensableparts,whichalltogetherform=anindi disruption. The judge had= to decide objectively visible,organicwhole.12=ThisVolksgemeinschaft= whether or not the marriage was permanently ismanaged=byoneleader,=the“Führer”,whois= disrupted and which facts had caused the= notsomucha=leaderbuta=servantoftheVolks disruption. Furthermore, the spouse who had gemeinschaft. He makes the laws, but, as the causedthedisruptioncouldnotinvoke§1568as Führer= is= the embodiment of “community per agroundfordivorce.7= sonality”, these laws will only reflect the inter estsoftheVolksgemeinschaft.TheFührer=there fore needs no supervision, as he serves the 3.Volksgemeinschaft–= thestrengthofanation= ======================== The National Socialist assumption of power in 8PINE,NaziFamilyPolicy9. 1933 brought some significant changes with 9HITLER,MeinKampf426–427. 10CARP,NationaalSocialisme20. ======================== 11HITLER,MeinKampf327. 6See §172 StGB: “Der Ehebruch wird, wenn wegen 12Carp however insists that= a= National Socialist= desselbendieEhegeschiedenist,andemschuldigen