Magis Global –

“The lawyers inform Dittenheber & Werner with judgment of the 25th 2011 the Federal Constitutional Court has, by the Federal Court of Justice in 2008 introduced, third method” rated as improper judicial development of the law and deemed invalid. The Munich law firm Dittenheber & Werner describes the decision of Germany’s highest judicial instance and its consequences. In 2008 the Federal Supreme Court in the context of judicial development of the law deviated, sound, calculation basis of for matrimonial maintenance obligations of in section 1578 para 1 sentence 1 BGB. If a post-divorce maintenance contractors, spouse after divorced marriage in turn married, the income level of the new spouse through the third method should be incorporated in the calculation of the spousal maintenance. The Supreme Court disagreed with the mentioned family basis after the maintenance level in particular the matrimonial living conditions of the original marriage is mainly with the introduction of the third method consciously. This he created after his opinion, one current affairs customized control intensified pursuit of the legislator to conjugal ownership as well as the fact that divorces and remarriages in constant growth are declining, was enough. The Federal Constitutional Court was concerned because one, originally before the OLG Saarbrucken of negotiated, dispute the admissibility of the third method. On the 25th, 2011, it was their introduction by the BGH in a momentous ruling inadmissible.

In particular, the Federal Court with the third method had exceeded the constitutionally justified extent of judicial development of the law. Accordingly, the jurisdiction for determining close matrimonial maintenance is now back again bound to the section 1578 para 1 sentence 1 BGB. The decision of the Federal Constitutional Court has not only the practice of the judicial legal development in the barriers, but could have momentous implications for divorce-related unterhaltsverpflichtete and authorized persons because of its retroactive nature. Was to spousal maintenance using the third method set retroactively lacks any legal provision of maintenance. This enables one affected maintenance in order to recalculate the maintenance Amendment lawsuit. Given the important impact of the Court ruling is to advise all individuals looking for familienrechtlich experienced legal counsel which best preserves its interest under the current modified legal conditions. The Munich law firm Dittenheber & Werner provides their experience and family law expertise to do this in the service of their clients. Press contact Dittenheber & Werner lawyers law firm contact person: Gunther Werner Pettenkoferstrasse 44 80336 Munich Tel.

On the 23.10..2010 right in the ARD reported in the guide about a case in which a mother is invited to pay 45,000 euros. On the 23.10.2010 right in the ARD reported in the guide about a case in which a mother is invited to pay 45,000 euros. Preceded by a warning because of illegal filesharing in so-called Internet sharing, which the mother received three years ago is this request for payment. At that time paid already 7,000 euros as punishment. Also, the wife had signed a cease and desist in the rest assured not to commit the infringement.

A contractual penalty in the amount of 5.000 euro should be paid in breach of this obligation. This case has now occurred. Overall, nine breaches have been identified. This example speaks once again that a cease and desist before signing should be considered first. This is not carefully done, it can lead to extensive further consequences.

After all the declarant for 30 years is committed to a failure. In the cease and desist the declarant undertakes a specific unlawful conduct to refrain from. Is a cease and desist, the declarant is no longer possible to refrain from consuming. The cease and desist eliminates the “risk required for an injunction or restraining order”. The risk can be eliminated only if the declarant in the cease and desist in the case of a further infringement committed to pay a reasonable penalty. Otherwise, the Declaration of discontinuance may be rejected by the rights holder. On the enforcement of a claim for damages, the Declaration has no effect. The enforcement will remain as before. To eliminate the risk and to avoid court proceedings, never issued the Declaration included in the warning. A modified explanations, a so-called modified Cease and desist, is suitable to eliminate the risk of repetition, as long as the declarant is committed itself, that criticized behavior refrain and the Declaration is sufficiently decreed him. Depends on each individual case, how far is the cease and desist to grasp. Many titles were for the upload ready kept, it may be advisable to include the Declaration of discontinuance (first a title is warned off, a short time later the next) to prevent subsequent cease and desist letters. If you have any questions about a cease and desist contact us without obligation for a free initial assessment under 07151 2095528. Her Tobias Arnold