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Germany: De Facto Complete Exclusion of Stepchild Adoption for Unmarried Couples Held Unconstitutional

(May 15, 2019) In a decision published on May 2, 2019, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the fact that an unmarried stepparent cannot adopt his or her partner’s child without terminating the child’s legal relationship to the latter, thereby de facto excluding stepchild adoption in such cases, violates the equal treatment clause of article 3, paragraph 1 of the German Basic Law. The Court declared the relevant Civil Code provisions unconstitutional and instructed the legislature to enact new provisions by March 31, 2020. Until the new rules are enacted, the current law is not applicable to stepchild adoptions for unmarried couples. (BVerfG, Mar. 26, 2019, Docket No. 1 BvR 673/17, ECLI:DE:BVerfG:2019:rs20190326.1bvr067317, BVerfG website (in German); Press Release, BVerfG, Complete Exclusion of Non-Marital Families From Stepchild Adoption Is Unconstitutional (May 2, 2019), BVerfG website; Grundgesetz [GG] [Basic Law], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, art. 3, para. 1, German Laws Online website; BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BGBl. I at 42, 2909; corrected in 2003 BGBl. I at 738, as amended, § 1754, paras. 1 & 2, § 1755, paras. 1 & 2, German Laws Online website.)

Applicable Law

The relevant provisions of the German Civil Code currently provide that if a married couple adopts a child or if a spouse adopts the child of the other spouse, the child becomes the legal child of both spouses. In all other adoption cases, the child becomes the child of only the adoptive parent. (CIVIL CODE § 1754, paras. 1 & 2.) Furthermore, when the adoption takes effect, the relationship of the child and its descendants to the previous relatives is extinguished, with the exception of cases in which one spouse adopts the child of the other spouse. In such cases, the legal relationship is extinguished only with regard to the other relatives. (Id. § 1755, paras. 1 & 2.)

A request for adoption is granted only if the adoption is in the best interest of the child. (Id. § 1741, para. 1.) The family court must decide on a case-by-case basis and make a prediction. (Id. § 1752.) It must conduct the necessary inquiries to establish the facts that are relevant to the decision ex officio. (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit [FamFG] [Act on Proceedings in Family Matters and in Matters of Noncontentious Jurisdiction], Dec. 17, 2008, BGBl. I at 2586, 2587, as amended, § 26, German Laws Online website.) The family court is supported in its inquiries by adoption agencies and youth welfare offices. (Id. §§ 189, 194.)

Facts of the Case

Complainant no. 1 is the biological mother of two minor children to be adopted. The biological father of the children, who had been married to the mother, died in 2006. Since 2007, the mother and complainant no. 4 have been cohabiting. According to their testimony, they did not get married because complainant no. 1 would otherwise lose her widow’s pension, which she needs in order to live. The couple had a son together in 2009. (BVerfG para. 14.) In October 2013, they requested that the district court declare the two minor children their joint children. However, the district court denied the request, stating that there was no joint adoption for unmarried persons. Further appeals remained unsuccessful. (Id. at 15–18.)

Decision

The Federal Constitutional Court held that the Civil Code provisions at issue in the case do not violate article 6, para. 2 of the Basic Law (parental right) or article 2, paragraph 1 in conjunction with article 6, paragraph 2 of the Basic Law (right to the guarantee of parental care and upbringing); however, the Civil Code provisions do violate the equal treatment clause of article 3, paragraph 1 of the Basic Law, because they unjustifiably disadvantage children in families in which the couple are not married. (Id. at 48 & 61.)

The Federal Constitutional Court reiterated that for a difference in treatment in such a case to be justified, it must pass a strict proportionality test. (Id. at 65.) By categorically excluding a joint adoption in families in which the couple are not married without examining the particular circumstances of the case, children in such families are disadvantaged. It negatively affects the development of their personalities and excludes the possibilities and advantages that would have been available by allowing the factual parent to become a joint legal parent. (Id. at 66.)

The Court stated that the aim of the legislature—to avoid unfavorable family situations and to limit adoptions to stable relationships—is legitimate. (Id. at 76.) However, in the case of stepchild adoptions, the child already lives with the nonbiological parent, and the complete exclusion of stepchild adoptions therefore does not achieve the desired aim. (Id. at 78 & 82.) Furthermore, even though a marriage generally signifies stability, the current legal provisions assume that relationships of unmarried couples are never stable, which does not reflect reality. (Id. at 96, 97 & 120.) The Court held that a complete exclusion of unmarried couples from stepchild adoption is not justified, because less restrictive means could achieve the desired purpose to limit adoptions to stable relationships. (Id. at 102.) The Court suggested that the legislature could ensure that the best interests of the child were protected and that the child would grow up in a stable relationship by providing for an adoption framework based on specific stability prognoses in case-by-case decisions. (Id. at 105.) It added that, in addition to an existing marriage, the legislature may use alternative stability indicators such as a minimum relationship duration. (Id. at 106, 107 & 122.) Finally, the Court pointed out that an adoption request is always decided on a case-by-case basis. (Id. at 122.)