Marriage – What you should know as a spouse
What does a marriage mean??
Three letters – “marriage” – express what characterizes the coexistence of couples. Marriage is family. Families formed the first human form of society. This form of society is therefore older than the state. Societies where people do not live together as families are nowhere in the world. Marriage is the legal expression of this family life together. Marriage gives the family a form and defines the rights and obligations of the spouse. If you want to get married to your spouse and partner, then you should know how you move. Marriage is much more than mere emotional attachment. Marriage is an institution that gives the partners rights and obligations.
The most important thing for you
- Anyone who views the engagement as a preparation time and a test of marriage should know that the engagement does not give rise to any legally enforceable claim to the marriage.
- If a fiancé has the resignation for an important reason, the other person is entitled to compensation for the expenses incurred in connection with the upcoming marriage.
- The civil marriage establishes the civil-legal marriage (civil marriage). It precedes the church wedding. The church wedding alone does not establish civil marriage.
- Marriage continues to shape society today. She has experienced a certain delay because marriage has been open to same-sex couples since 2017. The marriage establishes a number of rights and obligations of both spouses.
- Marriages of convenience are repealable, and the same applies to forced marriages, in which the partner was forced to marry by fraudulent deception or threat or force. Since the marriage requires the legal age of both spouses, child marriage is void.
Table of Contents
Marriage – why marriage?
Marriage is a special way of life. Even though singles or unmarried couples are increasingly shaping society, marriage is and remains a cornerstone of human coexistence. Even the bachelor Voltaire extolled marriage by saying, “It makes man more virtuous and wise,” chiefly because the woman holds back the man “from some nonsense because of her less bubbly blood, and her softer and more compassionate qualities.”
What does engagement mean??
Engagement is the mutual promise of persons of the same sex or sex to marry in the future. The thus established legal relationship among the fiancée is called a betrothal. This depends crucially on the explicit or conclusive behavior founded will to want to marry. The intention alone to marry later, established no betrothal. The demarcation is important, because only a declared engagement substantiates the compensation obligation of the partner in the withdrawal from the engagement.
Is the engagement obligatory or dispensable?
Engagement is not a requirement. Anyone who gets engaged merely indicates that he wants to prepare for marriage and declares his interest and readiness to enter into a marriage with the partner. Engagement time is preparation time and serves probation. Regardless, the marriage is possible without any prior engagement.
Does the betrothal justify a claim to marriage??
In § 1297 BGB it is expressly stated that “from a betrothal no request for entry of the marriage can be made”. It used to be different. Earlier, the betrothal justified a legal claim to sue the marriage and thus justified a compulsory marriage. The reason was the protection of the woman. In the past, the life prospects and social status of women depended on marriage. Their “bluntness” was often a prerequisite for a marriage. The marriage promise of a man established a basis of trust on which the woman and her family built their future. If this trust was disappointed, the life chances of this woman were often ruined. Since the social position of the woman has changed since then and the woman is explicitly equal to the man and increasingly emancipated, the betrothal has largely lost its legal significance. It does not constitute a legally enforceable right to a wedding. So you can not be judicially condemned to marriage.
If you have promised a contractual penalty in the event that the marriage is omitted, your promise under § 1297 II BGB is void and legally meaningless.
What consequences does the resignation from the betrothal?
As a fiancé, you can resign from the engagement at any time. An important reason is not important. If love has lost its luster, there is always an important reason in itself, which actually justifies the moral obligation to refrain from a marriage that is not very promising. Even if no one is forced to complete the betrothal by marriage, the betrothal nevertheless establishes a basis of trust. If you withdraw from the engagement, you are obliged to compensate the partner and his parents for the damage that has arisen from the fact that they have incurred expenses in anticipation of the marriage or have assumed liabilities (§ 1298 BGB). The same applies if you have caused the resignation of your partner from the engagement as a result of an important reason founded in your person. The obligation to pay damages from the engagement ends with the marriage.
Hans and Hanna got engaged. The wedding date is set. In anticipation of the marriage, the parents rented the throne room at the local castle, ordered the chapel and food service, and invited 200 friends and relatives. Three days before the wedding Hans gets panic and says goodbye to New Zealand. The wedding is canceled. In this case, Hans would be obliged to compensate Hanna’s parents for any expenses they incurred in anticipation of the marriage. Even if Hanna had given up her job in consultation with Hans to devote herself to household and child care, Hans would be liable for damages and would have to replace Hanna a certain loss of earnings. It would only be different if Hanna revealed to her Hans before the wedding that she had a relationship with his best friend and Hans had an important reason to refrain from marrying. A restriction is found where, under the circumstances, inappropriate measures have been taken (example task of a well-paid job without consultation with the partner).
Which rights and obligations are connected with the engagement?
- The engagement obliges the fiancé to pay damages if he resigns from the engagement for no reason and the partner or his parents have incurred expenses in anticipation of the marriage.
- The betrothal does not constitute a legal right of inheritance.
- Fiancée can already enter into a marriage contract to settle their future rights and obligations in marriage and in case of divorce.
- The betrothal does not constitute a legal maintenance obligation.
- The fiancé of a criminally accused partner has a right to refuse to give evidence in criminal proceedings and a party’s fiancé in civil proceedings.
- If the betrothal is dissolved, any fiancée can demand gifts that have been left to him as a sign of the betrothal.
- The marriage promise of a still otherwise married partner is void.
Wedding ceremony and wedding
In order to establish a legally effective marriage, the civil marriage is indispensable. The church wedding alone does not establish a civil marriage. The church only donates God’s blessing. Only in front of the registrar can the partners express their marriage (§ 1310 BGB).
Which registry office is responsible for my wedding?
If you wish to be married civilly, you have to announce your intention verbally or in writing to a civil registry office in whose jurisdiction one of the marriages has his domicile or habitual residence. If none of the marriages have their place of residence or habitual abode in Germany, the registry office before which the marriage is to be concluded is responsible for receiving the application (§ 12 PStG).
What’s this "Prohibition of church pre-marriage"?
Since the civil status law of 1875 civil marriage (civil marriage) and civil marriage are mandatory. At the same time it was determined that the church wedding should not take place before the civil marriage. There was an explicit “prohibition of church pre-marriage”. This ban was lifted until 1.1.2009. Although newlyweds can marry ecclesiastically, without before or later before the registry office to justify the marriage. However, the purely ecclesiastical wedding grounds no rights and obligations under the marriage law of the Civil Code. In order to avoid problems, the Protestant church in Germany continues to allow the church wedding only after the civil marriage has been carried out. The Catholic Church allows the church wedding without previous civil marriage only in exceptional cases, if the local bishop has given his permission.
If you manage to be married only by church, you do not establish a legally effective marriage. You can not legally divorce this marriage. Disconnect, both spouses have no claims to maintenance, pension equalization or gain-sharing. In that regard, it should be a commandment of reason to justify the marriage by the civil ceremony and then to seek God’s blessing.
How is the civil marriage prepared??
The wedding in front of the registrar requires preparation. In addition, the partners willing to marry have to register their marriage intention with a registrar. In order to clarify their identity and their personal status, the presentation of identity documents and the birth certificate is necessary. The registrar will check if there are legal obstacles to the marriage
(§ 13 PStG). If there are no complaints, the registrar must also carry out the marriage against his personal assessment and may not reject it arbitrarily.
The wedding in front of the registrar requires preparation. In addition, the partners willing to marry have to register their marriage intention with a registrar. In order to clarify their identity and their personal status, the presentation of identity documents and the birth certificate is necessary. The registrar checks whether the marriage is precluded by legal obstacles (§ 13 PStG). If there are no complaints, the registrar must also carry out the marriage against his personal assessment and may not reject it arbitrarily.
What documents do I need for the wedding in front of the registry office??
- To prove your birth a certified copy from the birth register. You will receive this birth certificate from the registry office or have the birth certificate certified in the family register of your parents (eg at the registration office).
- An extended registration certificate from the municipality where you maintain your primary residence.
- Valid identity card or passport.
- If you are divorced, you will need a copy of the final divorce decree.
- If you are widowed, you will need the death certificate of your lead spouse.
- If you are a foreign citizen, you will need the certificate of marriage of your home country.
When can the registrar refuse the wedding ceremony??
The registrar must refuse the marriage if the marriage is ineffective or revocable. The right to annulment of marriage is regulated extensively in §§ 1313 ff BGB. Grounds for revocation is § 1314 BGB. After that the marriage becomes ineffective or reversible:
- A partner is a minor. Then the marriage is ineffective.
- To prevent child marriages, every spouse must have reached the age of 18 and thus be of age. The previously existing exception that could be married at the age of 16, no longer exists.
- A spouse was in a state of unconsciousness or a temporary disturbance of mental activity (Example: In the TV movie “The Bull and the Landei” Kilmer marries his colleague Kati Biever in a state of total drunkenness).
- The spouse did not know that it was a marriage.
- The spouse was forced to marry by fraudulent misrepresentation (for example, partner claims he was single) or by threat or force (forced marriage). The deception about the financial circumstances of the other, however, is not a reason for cancellation.
If a partner willing to marry is under care, it depends on whether he is in a position to understand the nature of the marriage and to decide freely whether he wants to marry or not. If the supervised person is able to do so, they do not need the consent of the supervisor. However, the Registrar has the duty to check the marriage ability and is entitled to see the support files of the Supervision Court. Conversely, the Supervision Court can inform the registry office of existing care if it becomes aware that an unserviceable supervised person wants to marry and the marriage does not appear to be fair.
35-year-old Hans wants to marry 85-year-old Hanna, expecting to inherit her assets. If the registrar is in doubt about Hanna’s ability to marry, he can inform the supervisor and initiate supervision.
Which requirements apply to the marriage with a foreigner?
If a foreigner wants to marry in Germany, he has to fulfill the requirements for marriage in his home country. To do so, he must submit a marriage certificate to the registrar. The certificate loses its validity six months after its establishment.
Can I also marry a relative??
Marriage law forbids marriage among relatives (§ 4 EheG). The purpose is to avoid potential genetic defects (hereditary diseases, incidence risk) of children from such marriages. The prohibition of marriage applies to blood relatives in a straight line (parents – child – grandchild) as well as fully and half-worthy siblings. The marriage ban also covers adopted children and their adoptive parents and relatives.
If you want to marry your cousin, there are usually no problems. Cousins are the children of siblings. Their children are your second cousins. However, the Catholic marriage law determines that you may not marry a cousin of the first degree (can 1091 CIC), unless the church grants you a special permit. This circumstance has effects only if you want to be married ecclesiastically. Otherwise, your civil marriage will be effective before the registrar. The risk of incest from a cousin cousin is estimated at about 3% (in comparison: risk of brother / sister incidence is between 30 and 50%).
What if I want to get married abroad?
It is up to you where you want to marry. The only thing that matters is that you consider the marriage conditions of the country in question. Only then will your marriage abroad be recognized in Germany.
If your documents are written in German, you must have the documents translated regularly. The translation should be done by a publicly sworn translator. Or, conversely, if you would like your marriage abroad to be recognized in Germany, you need the marriage certificate, the authenticity of which you must have confirmed. This “apostille” is a form of authentication in international document traffic. It confirms the authenticity of a certificate. Responsible in Germany is the President of the locally competent district court. In other countries there might be similar rules.
What is the process of the wedding before the registrar?
The marriage is concluded by the partners declaring before the registrar that they want to marry. The partners must hand in the statement personally and in the presence of the registrar. They can not be represented, for example by their parents or siblings. You also can not do the explanation:
- under one condition (spouse is fertile) or
- a time determination (we would like to end our marriage after ten years at the latest) or
- with a reservation (I only acknowledge the marriage if the church wedding takes place).
The registrar should ask the partners individually if they want to marry. If both partners answer the question, the registrar declares the partners to be married. All of this should be done in a dignified form commensurate with the meaning of marriage. At the request of a partner, the marriage can also take place in the presence of one or two witnesses as witnesses. The registrar records the case in a protocol signed by spouses, witnesses and registrars. Thereafter, the marriage is entered in the marriage register.
The spouses receive after the wedding from the registrar a “family book”. In it, all civil-relevant data, ie marriage, deaths and childbirth are entered. You should keep this logbook well, as you will need the documents it contains over and over again, and you can have copies made of them more easily certified than if you had to claim the archive of the registry office. So you need the register also to prove your marriage, if you apply for divorce.
What are the consequences of the civil marriage??
With the marriage, the legal effects of marriage occur, without it being important whether the spouses know the rights and obligations associated with them in detail, expressly wish or disagree with them. What matters is in the law. What is in the law, can largely be changed by marriage contract and individually designed (example: agreement of property separation instead of the legal matrimonial property of Zugewinngemeinschaft).
What significance does the church wedding have??
In the past, marriage was religious. The Catholic Church considered marriage an institution of divine law and claimed exclusive jurisdiction for marriage and dissolution of marriage. The religious character was expressed in the church wedding by a priest. However, the church wedding is not a prerequisite for the marriage before the registry office. Conversely, the ecclesiastical marriage alone does not establish a legally effective bourgeois marriage. Until 2009, there was even a ban on church pre-marriage. Although the ban has been lifted, it has not changed the practice whereby the civil marriage precedes the church wedding. As far as the spouses attach importance to a church wedding, you round off the civil ceremony solemnly and dignified and also have the opportunity to involve a larger circle of relatives and acquaintances in the celebrations.
Christian marriage is a sacrament in Catholic teaching. If a baptized person marries an unbaptized person Catholic, the church denies the sacrament and grants only a natural wedding instead of the sacramental wedding. Since marriage is considered a sacrament among Christians, divorce does not resolve it. If you are a Catholic yourself and you divorce, you can not marry again. It is only different if your spouse died or your marriage was closed invalid and a Catholic court annulled the marriage. According to the Protestant understanding of the church, the church wedding is a solemn confirmation of the civil and legal marriage in front of the registry office, where the bride and groom receive God’s blessing and symbolically repeat their marriage vows before God.
How can the concept of marriage be grasped??
The Civil Code defines marriage in § 1351 Abs. I BGB as a marital cohabitation: “… The marriage is made by two persons of different or the same sex for life. Spouses are obliged to marry and share responsibility … “. The marriage is characterized by the following features:
- Marriage consists, according to conventional understanding, of a sex community between a man and a woman.
- Since equality of same-sex partnerships, marriage is also understood as a partnership between two persons of the same sex.
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The former marriage law was repealed with effect from 1.7.1998. It was of National Socialist origin and originated in 1938. The provisions contained therein were largely incorporated into the marriage law of the Civil Code.
What is the ratio of marriage to divorce??
In 2017, 407,466 marriages were signed in Germany. The marriages were opposed by 153,501 divorces (statista.com). Unlike in previous years, marriages seem to be increasing or, at least compared to previous years, stabilizing and divorces declining. Whether from a trend can be read, is an open question. In any case, marriage still has a high priority and is obviously also regarded by the younger generation as more than a mere formalism. However, the fact that same-sex partners have also been able to establish a marriage since June 2017 and are no longer dependent on the establishment of a registered civil partnership has an influence on the development of the marriage.
If you want to confess your love to your partner, the question is, “Will you marry me?” A commitment to take the relationship seriously and integrate it morally and legally so that the relationship has a formally solid foundation.
How long do marriages last on average??
On average, marriages last about 15 years in Germany. Statistically every other marriage is divorced, often many years before the silver wedding. Unusual in this respect is the connection of Queen Elizabeth II (91 years) and Prince Philip (96 years). Both married on 20.11.1947. After 70 years of marriage, they celebrated the mercy wedding.
Same-sex marriage / civil partnership
Legislators decided in June 2017 to have “marriage for all“. According to the revised § 1353 BGB, the marriage can now be closed by two persons of the same or the same gender. So even same-sex couples can establish a marriage. Previously, a marriage could only between two persons of different sex (man & Wife) to be closed. Previously, only the model of the registered partnership was open to same-sex partners, the details of which are regulated in the Civil Partnership Act. Those who live together in a previously established and registered partnership have the freedom to convert the partnership into a marriage. The prerequisite is that the partners explain each other and in person and in the presence of the registrar, to want to lead a marriage together for life. Since the marriage is now also open to same-sex partners, it is no longer possible to establish and register a civil partnership. Same sex partners who are married and have a marriage have the same rights and obligations as spouses of different sexes. An exception exists only with the adoption. Same-sex spouses are still not allowed to adopt a child together. As an option it remains that a partner adopts the child alone and the partner follows (successive adoption). If a partner brings a child into marriage, the other can adopt the child (stepchild adoption).
Rights and obligations of spouses in marriage
- • Spouses are obliged to marry and share responsibility for each other (§ 1353 p. 2 BGB)
- In marriage you can have a common married name or leave your previous name. The naming right is comprehensively regulated in § 1355 BGB.
- In marriage you can have a common married name or leave your previous name. The naming right is comprehensively regulated in § 1355 BGB.
- Each spouse is required to contribute to the family maintenance. The maintenance obligation includes everything that is required by the circumstances to cover the costs of your household and to meet your personal needs and the living needs of your common children (§ 1360a BGB).
- If you have liabilities, the law in favor of your creditors suspects that the movable property in your possession also belongs to your spouse, with the consequence that they can be seized by the bailiff (§ 1362 BGB). This assumption concerns in particular the furniture and the household effects of your marital home.
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However, as a spouse, you are not required to honor the partner’s desire to establish the community if the request is a misuse of his or her right (for example, marriage rape) or if your marriage has obviously failed and you intend to separate.
They shop in the supermarket for the weekend. Since you have forgotten the purse, leave the “write” and “forget” the blame. When your spouse enters the market, the seller asks him to pay the bill. Since this is a home-life business, your spouse is also required to pay. It is different if you buy in the electronics market the newest television with high-gloss technology, whose acquisition exceeds your financial circumstances. In this case, it is unlikely to be an adequate life-support business, so your spouse would be under no obligation.
The law makes it clear that the financial management and child care is to be recognized as maintenance work and that the work performance of the partner is equal (§ 1360 BGB). This principle has an effect on the divorce in the care equalization. According to this, the spouse who worked during the marriage and thus acquired pension rights must contribute the other spouse, who has not or less worked and provided the household and raised the children, to his pension rights.
If the bailiff seizes the TV in your marital home because of a liability of your spouse, you can obtain by court order that the TV is not subject to garnishment on proof of ownership.
What is a fictitious marriage??
Since marriage is characterized by the spouses’ obligation to marry and take responsibility for one another, there is a fictitious marriage when the spouses marry without any real life and destiny being intended. It is usually agreed that the marriage should be rescinded if the purpose agreed upon with the marriage (eg residence permit for a foreigner) is achieved. To determine whether the partners want to justify a fictitious marriage, the immigration authorities use a questionnaire. Thereafter, the persons wishing to marry are asked identical questions about their personal circumstances independently of each other. According to the content of the answers it is possible to roughly estimate the reasons why the marriage should take place and to what extent answers might have been denied. The questionnaire is largely secret and does not establish any third-party claim to inspection (see OVerwG Bremen Az. 1 LB 17/17 in the case of the Humanist Union). Since the fictitious marriage contradicts the legal order, it can be canceled (§ 1314 Abs. I Nr. 5 BGB). The request for annulment is possible for an indefinite period, but is excluded if the spouses have lived together as a spouse after the marriage, albeit for a short time. Already the registrar must refuse the wedding, if he has the impression that a fictitious marriage is to be closed. Insofar as he has concrete indications for this, he may question the apparent partners according to their intentions, request documents and even demand an affidavit (§ 13 PStG). If in doubt, he can let the District Court decide.
They do not justify a fictitious marriage if you are dying and marry your longtime partner or vice versa. Although you then close the marriage due to illness and usually to the care of your partner. But it does not hurt then that you can no longer realize your cohabitation.
When is a marriage contract recommended??
The matrimonial law of the civil code regulates the details of the marriage and carries out a largely appropriate balance between the interests of the two spouses. A marriage contract is usually unnecessary. Only in certain exceptional cases, the conclusion of a marriage contract is recommended. Exceptional cases are:
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They live without conclusion of a marriage contract in the legal matrimonial property of the Zugewinngemeinschaft. But this circumstance is no reason, before marriage contract separation. You are not liable for any liabilities of your spouse in both the estate of the Zugewinngemeinschaft and the segregation of property. If your spouse buys and finances a luxury vehicle in their own name, you will not be liable to the seller or the bank for payment if your spouse proves to be insolvent.
When and how can I conclude a marriage contract?
You can arrange a marriage contract at any time to your relationship, so before the engagement, on the occasion of the engagement, before or on the occasion of your marriage and not least with regard to your separation and even more so with regard to your upcoming divorce. It is important that you have a marriage contract notarized. Only in this way is it legally binding and only in this way can you forcefully enforce the rights and obligations agreed therein. Mere private agreements are and remain legally irrelevant.
Under what conditions can I apply for divorce?
You can apply for divorce if your marriage has been disrupted and failed. Whether your marriage actually failed, is to be determined in each case.
- Your marriage is considered as failed if your cohabitation no longer exists or is not expected that a spouse wants to restore this (§ 1565 Abs. I BGB). In this case, the law assumes that your marriage has been irretrievably broken and that any attempts at reconciliation have obviously not occurred or have failed. It does not matter if a spouse is guilty of marriage failure. Decisive is only the principle of dislocation.
- If you both agree that you want to be divorced, the law assumes, at the end of a divorce year, that your marriage has failed. Then you can apply for divorce alone or together with your spouse and divorce by mutual consent (mutual divorce according to § 1565 I BGB).
- If you disagree with your spouse, if the marriage has really failed or if your spouse refuses the divorce by mutual agreement, you can still be divorced after the end of the separation year, provided that you can prove the failure of your marriage as a result of your broken relationships (controversial divorce according to § 1565 Abs. I BGB). Then the judge will examine in detail if your marriage has failed. You can prove failure by using important reasons, such as adultery, alcoholism, a new cohesive life of your partner or threatened violence or violence.
- If your separation is three years back, the law irrefutably suspects that your marriage has finally failed. They can then be divorced against the expressly declared will of your spouse (§ 1566 Abs. II BGB).
Can I be divorced prematurely before the end of the separation year?
In well-founded exceptional cases, you can apply for divorce even before the end of the year of separation, if you can prove that you can not be expected to continue your marriage for reasons in the person of your spouse. You can rely on the hardship clause of § 1565 Abs. II BGB. Herbalists may be threatened or abused by your spouse, the fact that he / she deliberately humiliates you with a new partner, or incites your children so much against you that you become depressed.
What is the principle of disruption and fault principle?
In the past, the fault principle applied. After that, marriages could only be divorced if a spouse had caused the failure of the marriage. The fault principle was replaced by the reform of matrimonial law in 1976 by the principle of disruption. After that, it is no longer a matter of fault. The only reason for divorce is the fact that the marriage has been shattered and thus failed.
What is and how is an international divorce done??
An international divorce is a divorce abroad. Mostly a German citizen lives abroad or is married to a foreign national. International divorce law has been defined in the European Union since 2012 under the Rome III Regulation. The regulation takes into account the increased mobility of citizens and the increasing number of binational marriages. The core is that it is no longer primarily based on the citizenship of the spouse, but in principle to their habitual residence. In addition, the regulation strengthens the possibility of choice of law. The spouses can determine the divorce law applicable to their divorce.
If you make no choice of law, the following rules apply:
- Primarily, the law of the state in which both spouses have their habitual residence at the time of application for divorce applies.
- If you no longer have a common habitual residence, the law of the state in which you most recently resided.
- If this case also does not apply, the law of the country whose nationality both spouses hold at the time of the court’s appeal is applicable.
- If you do not have a common nationality, the law of the state of the court seised applies.
You can easily divorce in Germany, regardless of the state in which you have married. It is equally easy if you or your spouse are German citizens or at least one of you has your residence in Germany. Incidentally, the EU regulation also applies to Turkish nationals who reside in Germany.
Is a sharia divorce recognized in Germany??
A Sharia divorce is characterized by the fact that the divorce is not pronounced by a state court or an authority, but is a divorce court. Sharia divorce can therefore not be recognized in Germany. The Court of Justice of the European Communities has expressly stated that the Rome III Regulation applicable to international divorce law does not apply to divorce issued in a third State (ECJ C 372/16). The problem with such divorces is usually that the proceedings are conducted exclusively or predominantly according to religious rules and usually the wife has little opportunity to influence the divorce proceedings adequately.
Marriage and divorce are legal terms that have evolved over the centuries according to religious, cultural and social aspects. The development was by no means straightforward. Alleged progress has often been rebuilt. In that regard, it was a long road, which led from the Catholic doctrine of the indissolubility of marriage on the recognition of strictly fault-based divorce grounds ultimately to today’s disintegration principle, which focuses exclusively on the fault-independent failure of marriage.
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