With regard to the reform work in the field of matrimonial law and, in close connection with it, the creation of a uniform matrimonial law for Greater Germany, two points are of decisive importance:
a. The Concordat must not offer any impediment as soon as this matrimonial law comes into force.
b. The legislation for the execution of the Concordat, namely the law of 4.5.1934, has to remain in force until this time.
This result, decisive for any further action, cannot be achieved, in my opinion, on the basis of the first proposal of the Ministry of Interior. If the Concordat were null and void on account of unconstitutionality, then the same would apply to the legislation for its execution; the marriages based on the law of 4.5.1934 would be void and would have to be sanctioned with retroactive force. It is not clear to me how, on the basis of this reasoning, the Ministry of Interior can achieve a non-retroactive result in the nullification (p. 5).
There remains, therefore, the second solution proposed by the Ministry of Interior. If the Concordat excludes state succession, it seems to me, nevertheless, that the expiration of the law of 4.5.1934 does not result with effective date of 13.3.38. Even if an international pact expires, it seems to me that the legislation for the execution would bind the subjects until it was abrogated by an act of the state. The statements on page 9 of the letter are inaccurate insofar as the marriages which were contracted after 13.3 were not contracted by virtue of the expired Concordat, but by virtue of the law of 4.5.1934. Accordingly, it seems to me that continuing effect of the law of 4.5.1934 can be achieved in this way.
/S/ Ficker 18/5
SECRET
Reich and Prussian Ministry for Church Affairs
Berlin W.8., 3, Leipzigerstrasse, 11th May 1938
[stamp]
Reich Ministry of Justice, 13th May 1938.
Sect. V.
Re: Austrian Concordat.
Communication of the Reich Minister of the Interior, May 5, 1938
I 176/38 1014 g
Va 138/38g (Contents noted for the Minister)
The question whether the Austrian Concordat should be considered by the Reich Government as having been illegal and invalid from the very start, or as having been abolished by the revolution or whether it should be expressly cancelled can not be decided from a legal point of view but has to be decided from a political point of view.
This political decision can only be taken by the Fuehrer. Suggestions to this effect will be made to him by the Ministers competent in questions of foreign policy and of church affairs, i.e., by the Reich Minister for Foreign Affairs and by the Minister for Church Affairs, who have already contacted each other for this purpose.