BGH ruling: contact with child must not depend on payments

In its ruling of January 31, 2024 (case number XII ZB 385/23), the Federal Court of Justice (BGH) made an important decision in the area of family law that deals with the immorality of agreements between separated parents. The case centered on a Peruvian woman and her German ex-husband, who have two children together. After their separation, the woman moved to Peru with their older daughter, while the man remained in Germany. The husband always had to travel to Peru to see his children.

A few years after the wife's move and the divorce, the two concluded a court-recorded settlement. According to this settlement, the man was to pay 60,000 euros to his ex-wife in three annual installments. The condition for this was that each installment would only be due after the man had had three weeks of contact with the children in Germany. The wife later applied for this settlement to be set aside as the local court had not carried out a sufficient examination of the best interests of the child in accordance with Section 156 (2) FamFG. She considered the settlement to be null and void and took legal action against it. Both the Local Court and the Higher Regional Court (OLG) in Munich ruled that the proceedings had been terminated by the settlement.

The BGH overturned the decision of the OLG and referred the case back. The Senate found that the condition that the installments should only become due when the father was actually able to have contact with his children was immoral within the meaning of Section 138 (1) BGB. According to the BGH, not every commercialization of contact rights should be rejected in principle. However, from the point of view of the child's welfare, there is always the risk that the children are turned into commercial objects by the parents' economic interests and exposed to particular conflicts of loyalty. Such an agreement is immoral if it is made enforceable without judicial control of the best interests of the child. The BGH emphasized that the right of access is not subject to the free contractual disposition of the parents.

It is now up to the Munich Higher Regional Court to examine whether the immorality of the relevant provisions on installment payments affects the entire court settlement in accordance with Section 139 BGB. It must be clarified whether the settlement would also have been concluded without linking the payment of installments to the actual contact with the children.