Maintenance for non-spouses: The community of responsibility in social law

For many people and their relatives, the need for long-term care represents a considerable financial burden, despite the benefits provided by statutory long-term care insurance. In principle, state care assistance offers people in need of care financial support if their own resources are insufficient. In this context, however, the role that relatives play in social law is often underestimated.

The subordination principle

The granting of social assistance is subject to the principle of subordination: own resources and the funds Related parties must be prioritised before state support takes effect. § Section 19 (3) SGB XII defines the group of people whose income and assets are to be used to cover their needs before social assistance is paid.

This group of people includes

• The Beneficiaries
• The Spouse not living apart or
• For underage, unmarried persons: the Parents or one parent.

And what about unmarried partners?

Anyone who thinks that a non-marital partnership protects against recourse by the social welfare provider in the event of the partner needing care is mistaken.

While civil law does not recognise maintenance claims between non-marital partners, social law does provide for claims. The background to this is the existing relationship under social law between the needy person and the partner. Community of responsibility. According to § 20 SGB XII Prohibition of improvement should Cohabiting partners are not treated more favourably than spouses with regard to the conditions and scope of social assistance.

The community of responsibility

The term "community of responsibility" is not defined by law. Problems therefore arise in practice, particularly when it comes to the question of when a marriage-like community within the meaning of § 20 SGB XII exists and what factual findings are required in this regard. The social courts have developed criteria for the existence of a community of responsibility:

1. Partnership bondA long-term, exclusive life partnership.
2. Residential and economic communityThe partners live and work together.
3. Mutual willingness to get involvedThere is a willingness to take responsibility for one another.

The decisive factor here is an overall assessment of the individual case.

Spatial separation due to stay in a care home

Although the residential community required for a community of responsibility is undoubtedly not (more) exists when a life partner moves into a nursing home, the social courts regularly decide that the mere spatial separation caused by the stay in a nursing home, the community not finished. The decisive factor is the will to continue the community.

In this context, courts such as the Karlsruhe Social Court (judgement of 14.08.2015 - S 1 SO 1225/15) and the LSG Baden- Württemberg (judgement of 01.10.2015 L 7 SO 118/14) demand that a possible Will to separate recognisable from the outside must be clearly documented. A mere declaration that the partnership has been dissolved is not sufficient.

According to a decision by the LSG Bremen, the required will to enter is lacking at least if a corresponding will can no longer be formed due to dementia. (LSG Lower Saxony-Bremen, decision of 9 April 2020 - L 8 SO 270/19 B ER)

Conclusion

Non-marital partners should be aware that they are considered part of a community of responsibility under social law and may therefore have to pay for the care of their non-marital partner in the same way as a spouse.

 

Ricarda Hegge

Assessor