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In the recent past, in the opinion of some theologians, the German catholic church is close to a schism with the Catholic Church. Regardless of whether you agree or not, I'm interested in knowing what would happen to the physical assets (churches, works of art, etc) of the catholic church in Germany? Would they then belong to the newly founded German church?

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    There is sort of a precedence with the conflict around St. Salvator in Munich. The church is property of the state (Bavaria) but was given for use to the Greek-Orthodox parish in 1829. In the 1970s the parish (or the crucial people) secessed from the Greek-Orthodox hierarchy. Bavaria wanted the church back in order to give it to the 'official' Greek-Orthodox Church. After many years of litigation up to the German Constitutional Court and the ECHR Bavaria won. But if you read the judgements you see that it belongs heavily on the individual case (historical background and current situation).
    – K-HB
    Mar 19 at 19:34
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    LOL. The assets of the German catholic church were apparently worth about 270 billion euros in 2002 ( de.wikipedia.org/wiki/… ). Some archdioceses even stopped counting their assets after a few billion €, because it was too much work. So I suppose your question would be of utmost importance in case of a schism. Mar 20 at 15:15
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Precedents And General Considerations

There are cases of similar things happening in Protestant churches and it ends up being quite case by case fact specific with details of how title is held to property, the exact language of governance documents, since Protestant churches are organized at a governance level, and hold property titled in a variety of ways. Usually, the leadership determined in according to the pre-schism governing documents ends up getting the property.

But there are property ownership issues specific to the Roman Catholic Church which don't have such clear precedents, because the Roman Catholic Church, due to its great antiquity, wasn't set up in the manner of modern non-profit corporations and associations the way that most modern Protestant churches are, for reasons partly historical, and partly because most Protestant churches are set up either as foundations or as democratically governed institutions with written governance documents tailored to modern legal conventions that are controlling, whereas the Roman Catholic Church, since its inception, has been a non-hereditary monarchy in perpetual succession managed by the College of Cardinals under Canon Law.

For this reason, a determination of what would happen in the case of the Roman Catholic Church schism, in which more than one faction of the church claimed to be the legitimate successor to the pre-schism church's property, is even more uncertain and fact specific than in the Protestant church precedents.

Among the facts that would matter are the stances taken by the respective factions.

If one faction forms a new corporate form of organization and registers with the German government as a new church for church tax purposes, it would essentially cede all of the Roman Catholic church's property, even if it won over 95% of the members of the old Roman Catholic Church and 95% of its lesser clergy, particularly if the new faction did not have the backing of the Pope or the senior members of the pre-schism Roman Catholic Church hierarchy.

This is a fairly common fact pattern in Protestant church schisms and is, for example, how schisms in the New England Congregational Churches played out when it was disestablished in the 19th century. Many of New England's formerly established churches, which were organized at a Congregation by Congregation level had board of directors who adopted a Unitarian Christian theological stance, rather than the Trinitarian theological stance shares by the vast majority of Christian denominations. Trinitarian Christians left when this happened and established their own new churches, leaving the property of the rump Unitarian Congregational church in the control of its board of directors.

Governance And Title Issues

The most common form of ownership of Catholic Church property, globally, is called corporation sole, although the Catholic Church owns property in a variety of means. As explained at the link:

In the case of the Roman Catholic Church, ecclesiastical property is usually titled to the diocesan bishop, who serves in the office of the corporation sole.

The Roman Catholic Church continues to use corporations sole in holding titles of property: as recently as 2002, it split a diocese in the US state of California into many smaller corporations sole and with each parish priest becoming his own corporation sole, thus limiting the diocese's liability for any sexual abuse or other wrongful activity in which the priest might engage.

This is, however, not the case everywhere, and legal application varies. For instance, other U.S. jurisdictions have used corporations at multiple levels.

In the jurisdictions of England and Wales, Scotland, Northern Ireland, and the Republic of Ireland, a Roman Catholic bishop is not a corporation sole, and real property is held by way of land trusts, a tradition dating back to the suppression of Roman Catholicism by Henry VIII during the English Reformation and the Penal Laws of Ireland.

For example, some church property is owned by affiliated non-profit corporations with their own boards of directors, that aren't truly titled in the church itself which own lots of Catholic hospital property. Control of property held in this fashion would be determined by the board of directors for these non-profits, which might be afforded discretion to determine which Roman Catholic church is the true one, or even if that decision needs to be made at all. If the governing documents don't require direct input from the church into succession to the board of directors (e.g. if the board fills its own vacancies rather than having vacancies filled by the local Bishop), it may not be necessary to resolve the dispute at all. Even if the governing documents call for the hierarchy of the church to play a part in filling vacancies in the board, German courts might defer to the board regarding which faction's church officials are the ones with the authority to do so.

Other moveable property like the clothing and toiletries and personal effects of individual priests doesn't have a certificate of title, but would probably be treated as owned by the individual priests.

For property held in corporation sole, title is vested in the current holder of a particular title in the Catholic Church hierarchy. So, for example, a Cathedral in Bonn might be titled in the Archbishop of Bonn in a corporation sole, which means that the Archbishop has the authority of the shareholders, directors and officers of a regular corporation while in office, but when a new Archbishop takes office, that title passed to the new holder of the office, and the succession is understood to be governed by Roman Catholic Canon law as ultimately interpreted by the Pope.

One possibility is that the Archbishop sides with the Pope's party, keeps office, and continues to own the property despite having lost many parishioners in the Diocese. This is pretty straightforward.

But there are alternative possibilities. Suppose that the sitting Archbishop sides with a faction not supported by the Pope?

At first blush, this would suggest that this Archbishop's faction gets the Cathedral and its contents.

But suppose that the faction supported by the Pope and the Roman Catholic Church canon law establishment promptly removes the dissenting Archbishop, after he has already broken away. Does the property revert to the newly appointed Archbishop as his successor, or, by casting his lot with the faction that has broken away, has the Archbishop removed the property he holds in corporation sole from the Pope's faction and instead shifted the succession of that particular Archbishop's post to the new faction?

This question doesn't have a clear answer.

If all of Germany's Bishops and Archbishops and Cardinals and most of its priests united behind a breakaway German Catholic Church, German courts might be inclined to side with the incumbents in those posts, rather than Papally appointed replacements. But there is really no way to have certainty about what would happen in the situation in advance.

The Precedent Of The Reformation Isn't Helpful

During the Reformation, in the 16th century, what happened is that the secular feudal lord or king decided either to stay Roman Catholic, or to join the new Protestant Lutheran or Calvinist or Episcopal or Presbyterian church in the region, as the case might be.

In the lord or king stayed Catholic, the Catholic church hierarchy got the Roman Catholic church's property in his domain, and the Protestant converts were persecuted as heretics.

In the case that the lord or king sided with the Protestants, the Roman Catholic church property went to the feudal lord's new Protestant church, together with all priests and other members of holy orders who didn't refuse to swear allegiance to the new Protestant church, and all of the residents of his domain were converted to Protestantism (or faced persecution as heretics if they didn't) whether they wanted to or not, because this was considered to be a decision for the lord rather than for the individual.

But obviously, that isn't what would happen in Germany today.

Historical Succession Fights Within The Roman Catholic Church

The other historical precent might be more apt, but equally unclear. There have been several times in the history of the Roman Catholic Church in which the succession to the Papacy was contested. In 20/20 hindsight we call the winners of those succession fights "Popes" and the losers of those succession fights "anti-Popes". The most recent spate of antipopes were Clement VII (1378), Benedict XIII (1394), Alexander V (1409), John XXIII (1410), although there was also a final antipope, Felix V (1439) (who abandoned his claim after less than a year voluntarily). The first antipope was Saint Hippolytus (217). There were 31 antipopes in between them (give or take depending upon how you count them and who you conclude qualifies). As Wikipedia explains:

An antipope (Latin: antipapa) is a person who, in opposition to the lawful pope, makes a significant attempt to occupy the position of Bishop of Rome and leader of the Catholic Church. At times between the 3rd and mid-15th centuries, antipopes were supported by important factions within the Church itself and by secular rulers.

Sometimes it was difficult to distinguish which of two claimants should be called pope and which antipope, as in the case of Pope Leo VIII and Pope Benedict V. . . .

The period in which antipopes were most numerous was during the struggles between the popes and the Holy Roman Emperors of the 11th and 12th centuries. The emperors frequently imposed their own nominees to further their own causes. The popes, likewise, sometimes sponsored rival imperial claimants (anti-kings) in Germany to overcome a particular emperor.

The Western Schism—which began in 1378, when the French cardinals, claiming that the election of Pope Urban VI was invalid, elected antipope Clement VII as a rival to the Roman Pope—led eventually to two competing lines of antipopes: the Avignon line (Clement VII took up residence in Avignon, France), and the Pisan line. The Pisan line, which began in 1409, was named after the town of Pisa, Italy, where the (Pisan) council had elected antipope Alexander V as a third claimant. To end the schism, in May 1415, the Council of Constance deposed antipope John XXIII of the Pisan line. Pope Gregory XII of the Roman line resigned in July 1415. In 1417, the Council also formally deposed antipope Benedict XIII of Avignon, but he refused to resign. Afterwards, Pope Martin V was elected and was accepted everywhere except in the small and rapidly diminishing area that remained faithful to Benedict XIII.

Liturgical councils or actual wars and assassinations over the course of history resolved the various disputes, but as the Western Schism which took 39 years to resolve illustrates, the need for practical resolution of the question on the ground could come to head much sooner, and would have to be resolved by German secular courts in the meantime (possibly assisted by certified questions to the German Constitutional Court as freedom of religion issues under the German Constitution might be implicated) in the context of specific questions of control over specific items of tangible personal property and of real property came up.

Pending final resolutions of these disputes on the merits, the German courts would probably impose some sort of temporary orders to adjudicate the immediate question of control pending adjudication of the issue on the merits, which might take some time to resolve, probably with many appeals (assuming that the dispute remained live, rather than being settled in some sort of agreement between the leaders of the respective factions claiming authority over the property).

A Precedent of An Orthodox Church in Germany

Commentator K-HB made on a comment on March 19 at 19:34 that is one of the most important precedents in this case, which I reproduce below with a few corrected spelling/punctuation issues:

There is sort of a precedence with the conflict around St. Salvator in Munich. The church is property of the state (Bavaria) but was given for use to the Greek-Orthodox parish in 1829. In the 1970s the parish (or the crucial people) seceded from the Greek-Orthodox hierarchy. Bavaria wanted the church back in order to give it to the "official" Greek-Orthodox Church. After many years of litigation up to the German Constitutional Court and the ECHR Bavaria won. But if you read the judgments you see that it belongs heavily on the individual case (historical background and current situation).

The Role Of Germany's Church Tax

One factor that might be decisive in resolving this is that German has what is commonly called in English language sources a "church tax" which is a voluntary deduction from worker's paychecks, along with taxes, that is automatically delivered to the church with whom the worker is officially affiliated in German government records. In that system, there are currently about 8 million people who are registered as Roman Catholics who participate in the system and have their payroll deductions turned over to the Roman Catholic church.

The details of the administrative process in the German church tax system that determine who in the Roman Catholic church is authorized to receive the church tax payments from Roman Catholics in Germany would probably be highly influential in how secular courts adjudicating property ownership disputes between the factions would resolve those questions.

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  • very interesting answer! Thanks. If no better answer appears until tomorrow, I'll accept yours. In the meantime +1 ;) Mar 19 at 20:27
  • There is a precedent you could site but you have to look far older. The schism between the Roman Catholic and Greek orthodox had the split go largely with the local bishops.
    – Joshua
    Mar 20 at 4:20
  • "thus limiting the diocese's liability for any sexual abuse or other wrongful activity in which the priest might engage." Now, that is forward-thinking! Mar 20 at 19:21
  • @Joshua A comment to the OP addresses it. I have no additional personal knowledge of it to add but agree that it is one of the most important precedents.
    – ohwilleke
    Mar 22 at 19:49
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    There's one thing I'd like to add: Here in Germany, the bigger churches are organized as public corporations. Church buildings (at least the older ones) are often registered as so-called “transaction-less properties” (buchungsfreie Grundstücke). This means that the property doesn't neccessarily have a formally registered owner and ownership can be transferred without a deed if public duties are transferred along with the property. This means that church buildings can change ownership if the church gets restructured. Highly confusing if you ask me.
    – erebus
    Jun 21 at 21:01
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Also would likely have some specificity to the ultimate cause of the schism and what happens with it. Remember, the Great Schism (1050) was largely over the overall management and chain of command of the Catholic Church, and arose from rather minor doctrine disputes that what is now the Eastern Orthodox Church and Roman Catholic Church. The Eastern Orthodox Church was rather upset that a few relatively minor changes to the Nicene Creed were enacted without even talking to them first (of the two overall differences, one change specifically was the change of the speaker of the creed from First Person Plural to Singular). Contrast with the Protestant Reformation, which started with the disgust of the upper levels of the church acting corruptly and selling "indulgences" for sins and these excess leading the leadership away from piety. Protestentism was the seperation of two equal churches but a fracturing of several several smaller churches over differences with the Catholic Church (or even a parent Protestent Church). While many of these faiths differ over important matters of faith, the core matter of Faith that differs Protestants and Catholics (the nature of the Eucharist) is the biggest difference (Catholics believe that the Eucharist is transubstantiated into the actual Body and Blood of Christ, like it was during the Last Supper, while Protestants believe Eucharist is only symbolic of the transformation of the bread and wine and is not actually changed. Because this is a rather major part of Christian religion, this matter of faith is a much wider gap that seperates Roman Catholics and Protestants than the tenents of faith that differ between the Roman Catholics and the Eastern Orthodox faiths.). Protestantism is a rather broad and diverse sect of Christianity which lacks a unified hierarchal order and shared tennets between the various churches classified as Protestant. Not all of the protestent churches left for the same reason and they certainly do not agree as to what the remedy to the problems they saw were (Consider Anglicanism, which remodied papal refusal for divorce from the king by making the king the head of the church and changing little of anything else... It's pretty much the same thing as Catholicism. Contrast with the Amish, which believe the solution to their concerns with Catholicism was to avoid temptations by maintaining a strict Ordered lifestyle and enshewing items that make them seem prideful in their appearance or status. What is orderly differs between communities and is agreed on by the baptized men of a particular community (Amish actually are a sect of Mennonite Anabaptists and did not directly break with Catholic faith).

How these sects interact with one another. For example, Roman Catholics and Eastern Orthodox are largely religiously compatible. The Roman Catholic Church considers The Orthodox church to be schismatic but not heretical (The Orthodox Faith considers Catholics to be Heretical but only in certain matters of faith.). Notably both Churches will allow their clergy to administer certain sacraments to members of the other faith in certain circumstances (A Catholic Priest should do it when the Orthodox person comes of their own free will and no Orthodox Priest is readily available. For Orthodox Priests, it should only be done if no Catholic Priest is available and it is an emergency. Members of either faith can recieve Reconcilliation, Communion, and Last Rights from a priest of the other sect, both can perform and bless marriages between spouses where one is a member of the other sect, and Orthodox considered someone Baptized as a Roman Catholic to not need to be baptized if converting.). Contrast with Protestants, notably in that Catholics cannot consider receiving Eucharist from protestants to be properly administered nor can the administer it to Protestants (due to the differences in belief of what takes place during communion).

In all, if a "German Schism" occurs, the differences and who gets what is rather complicated and case specific. There's no rule book because the idea is that there should not be sectarian divisions in either church.

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    Interesting discussion of religious principles, but there doesn't seem to be any discussion of German property law, which is what the question asks for.
    – bdb484
    Mar 19 at 19:02
  • I get the sense that this answer may be missing its intro sections. I mean, some of the discussion above might be relevant once the basic legal considerations are laid out, though at current, the introduction seems absent.
    – Nat
    Mar 20 at 22:02

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