Reading time 2 minutes
Lawyer Markus Karpinski explains the legal situation regarding the need for care and social assistance. According to him, a spouse may not be placed on the same level as a citizen’s allowance. This would create an incentive for separation and thus violate the constitutional protection of marriage and family under Article 6 of the Basic Law.
Social welfare offices often act incorrectly
According to Karpinski, social welfare offices often act incorrectly and take into account the spouse’s income and assets. They do this because they misinterpret paragraph 19, section 2 of the Social Code Book XII.
In this case, it would be assumed, but not required, that spouses support each other, and this presumption can be refuted, as the Federal Social Court and the Federal Court of Justice have confirmed.
Case law has confirmed that a spouse may not be required to provide more support than he or she is legally obliged to provide, explains Karpinski.
The social welfare office must leave the spouse more than the social assistance rate if a person in need of care receives social assistance. The spouse must regularly be allowed to keep half of the joint net income.
In practice, however, according to Karpinski, social welfare offices do not adhere to this and leave the spouse little more than a person entitled to benefits under SGB II.
Violation of the special protection of marriage and family
However, according to Karpinski, this should not happen because it would create an incentive for separation and thus violate the special protection of marriage and family in Article 6 of the Basic Law.
Why do social welfare offices act wrongly?
According to Karpinski, the social welfare offices act according to the motto of paragraph 19, section 2 of the Social Security Code XII and consider themselves entitled to calculate so much of the spouse’s income that only the minimum subsistence level remains.
However, the Federal Social Court made it clear that the said paragraph merely expresses the presumption that spouses are prepared to use their income and assets for each other up to the limit of their own social welfare needs. However, a legal presumption can be refuted.
What can those affected do?
In order to avoid being forced into need of social assistance themselves, Karpinski says it is sufficient for spouses to make it clear when applying that they will only pay as much of their income as they would have to pay in the event of a separation.
This refutes the legal presumption to which the social welfare offices refer.
What is the legal basis?
Karpinski cites judgments on which he bases his legal opinion. The
Federal Social Court 2012 (case number B 8 SO 13/11 R). The Federal Social Court stated that the legislature “typically assumes” that spouses support each other up to the point of their own need for social assistance. According to Karpinski, this corresponds to a presumption.
In 2010, the BSG had emphasised that it was (merely) a presumption (case number B 14 AS 51/09 R). The BSG expressly stated at the time that this was not a legal obligation.
In 2016, the Federal Court of Justice ruled that the spouse only had to pay maintenance in the amount of the separation allowance. (Ref. XII ZB 485/14) According to the Federal Court of Justice, this was also justified under social and constitutional law.
If it were the other way around, this would represent a privilege for spouses who separated from their partner when the person in need of care was admitted to a home. However, such a privilege would contradict the special protection of marriage and family under Article 6 of the Basic Law.
Dr. Utz Anhalt is a book author, publicist and historian. In 2000 he completed a Magister Artium (MA) in history and politics at the University of Hanover. His main areas of expertise are social law, social policy and natural sciences. He has worked as a research assistant on documentaries for ZDF, History Channel, Pro7, NTV, MTV and Sat1.
