Completely excluding non-marital families from stepchild adoption is unconstitutional

Press Release No. 33/2019 of 02 May 2019

Order of 26 March 2019
1 BvR 673/17

Excluding solely non-marital families from stepchild adoption violates Art. 3(1) of the Basic Law (Grundgesetz – GG). It is incompatible with the general requirement of equal treatment that the unmarried step-parent in a family cannot adopt the children of the other parent without this severing the child’s legal relationship to the legal parent, whereas such a child can become the joint child of both parents if they are married. This is what the First Senate held in an order published today, declaring the underlying Civil Code provisions unconstitutional and requiring that the legislature enact new provisions by 31 March 2020. In its reasoning, the Senate stated that the general concerns regarding stepchild adoption cannot justify disadvantaging children in non-marital stepfamilies and that the stepchild’s protection from an adoption with detrimental effects can be effectively ensured by means other than the complete exclusion from adoption.

Facts of the case:

I. As the law currently stands, stepchild adoption resulting in joint parenthood is possible only if the step-parent is married to the legal parent, whereas, in non-marital stepfamilies, the step-parent cannot adopt the children of the legal parent without the children’s legal relationship to the legal parent being severed (§ 1754(1) and (2) and § 1755(1) first sentence and (2) of the Civil Code, Bürgerliches Gesetzbuch – BGB). The step-parent would then be the child’s only legal parent, which is usually not in the parties’ interest. Thus, under the applicable law, stepchild adoption in non-marital families is factually ruled out. There are no special statutory relationships between the unmarried step-parent and the child. This also applies where the step-parent lives in a social and family relationship with the other parent and the child. The unmarried step-parent is neither entitled to custody nor obliged to care for the child. Even after the legal parent has died or the couple has separated, there are no special statutory relationships between a step-parent and a child, apart from a possible right to contact pursuant to § 1685(2) BGB.

II. Complainant no. 1 is the biological mother of the children to be adopted, complainants nos. 2 and 3. The biological father of the children, who had been married to the mother, died in 2006. Since 2007, complainant no. 1 and complainant no. 4 have lived in a non-marital partnership. They claim they did not marry because complainant no. 1 is eligible for a widow’s pension that she considers to be an essential part of their livelihood and that she would lose if she remarried. The couple has a son together, who was born in 2009. The Local Court (Amtsgericht) rejected the application for an adoption order declaring complainant no. 2 and complainant no. 3 their joint children. The complaint lodged before the Higher Regional Court (Oberlandesgericht) and the complaint on points of law (Rechtsbeschwerde) before the Federal Court of Justice (Bundesgerichtshof) remained unsuccessful.  

Key considerations of the Senate:

The provisions at issue violate Art. 3(1) GG.

I. According to the provisions at issue, children in non-marital stepfamilies in which the step-parent is not married to the legal parent are treated unequally compared to children in marital stepfamilies. Unlike children in marital stepfamilies, they are denied any possibility of being adopted by the step-parent while maintaining the legal relationship to their legal parent and thus of also becoming the joint child of both parents with whom they live in a non-marital stepfamily.

II. This disadvantaging is not justified.

1. To justify such disadvantaging, strict proportionality requirements apply. Art. 3(1) GG does not preclude any differentiation on the part of the legislature. Differentiations, however, must always be justified by factual reasons commensurate with the aim and the extent of the unequal treatment. Depending on the subject matter of the legislation and the criteria for differentiation, different constitutional requirements regarding the factual reasons justifying the unequal treatment will result from the general guarantee of the right to equality. The constitutional requirements for the legislature become stricter when freedoms are affected in the specific case, when individuals have few possibilities of influencing the criteria on which the statutory differentiation is based, or when such criteria closely resemble those of Art. 3(3) GG. Accordingly, a stricter standard for review applies to this case given that adoption concerns fundamental rights of the child that are essential for the development of its personality, in particular its right to the guarantee of parental care and upbringing under Art. 2(1) in conjunction with Art. 6(2) first sentence GG and its right to family with its parents protected by Art. 6(1) GG, and given that the exclusion of stepchild adoption disadvantages the child overall. Moreover, the differentiation criterion applicable the provisions at issue – marriage between parent and step-parent – can neither be influenced by the children nor can it be attributed to the children if the parents do not get married.

2. The challenged provisions do not satisfy these stricter justification requirements. Disadvantaging the affected stepchildren, at least, disproportionate in the strict sense.

a) General concerns regarding stepchild adoption cannot justify disadvantaging children in non-marital families given that these concerns do not relate to problems of stepchild adoption that only arise in non-marital families, but rather occur in both marital and non-marital families.

b) Nonetheless, the purpose the legislature pursues with the exclusion, which is to prevent a child from growing up in an inadequate family situation, is legitimate. Yet in the specific situation of stepchildren, this aim cannot be achieved by the exclusion from adoption not least because generally, the child already lives in a family with the parent and the step-parent. If the child’s legal parent is not married to the step-parent, the option of a marital family is simply not available to the child.

c) Limiting stepchild adoption to relationships that are likely to be stable, which is pursued by the exclusion of non-marital families from stepchild adoption, also is a legitimate purpose. Children can thus be protected against disadvantages that they could suffer due to the adoption if the parent and the step-parent separated even before a reliable relationship had developed between step-parent and child, and the child tied in a full legal relationship to the step-parent even after the parents’ separation because of the adoption. Yet the complete exclusion of unmarried couples from stepchild adoption is no appropriate means for achieving this purpose.

It is constitutionally unobjectionable that the legislature uses the parents’ marriage as an indicator of stability in the context of adoption law. If parents are married, it suggests a more serious commitment that goes beyond the short-term desire for a relationship, and thus a more stable relationship. However, the statutory provisions are not suitable for identifying stable non-marital stepfamilies given that they draw on the parents’ marriage as the necessary indicator of stability and do not allow for alternative indicators that may establish stability expectations.

To the extent that the protection of children that can be achieved by means of excluding non-marital families from adoption completely is more effective than the protection that can be achieved by a statutory adoption framework based on a specific stability prognosis in the individual case, it does not compensate for the disadvantages that can arise for children in non-marital stepfamilies when adoption is denied even if the parents’ relationship is stable and the adoption would generally be in the best interest of the child. The stepchild’s protection from an adoption with detrimental impact can be effectively ensured by providing for a statutory adoption framework based on specific stability prognoses; within such a framework, the legislature is not prevented from expecting the same level of stability from unmarried couples that it legitimately expects from married couples.

The legislature’s authority to simplify and typify also do not justify that the indirectly challenged provisions completely rule out stepchild adoption in non-marital families and thus also exclude stable stepfamilies from adoption. Even if the legislature sets out a framework for procedures that are evidently not mass administrative procedures, such as the assessment of adoption requirements, typifying provisions are not ruled out from the outset; such provisions do not violate the general guarantee of the right to equality merely because they inevitably place some individuals at a disadvantage. If uncertain circumstances or events must be addressed by a provision – such as the stability of a couple’s relationship in the case at hand – that cannot be determined with certainty even in a detailed assessment of the individual case, it can contribute to legal certainty if the legislature uses types, tying legal consequences to constituent elements that can be more clearly defined and that – as representative criteria – cover the uncertain circumstances or events as precisely as possible. However, unequal treatment that is linked to typification can only be constitutionally justified under certain conditions that are not met in the present case. Strictly excluding non-marital families from stepchild adoption is not realistically based on the typical case. Non-marital families have become more and more common as another family type besides marital families. Today, there is no basis for assuming that a couple’s relationship in a non-marital family is, in general, particularly fragile, and only rarely stable. Thus, the provisions do not merely affect a relatively small proportion of the wrong families, but will often affect stable stepfamilies where a lasting parent-child relationship develops and the adoption by the step-parent would be in the child’s best interests.Furthermore, the extent of unequal treatment is intense. The marital status of the children’s parents determines whether the children’s social parent can become their legal parent. Finally, this hardship could be avoided without too much difficulty. In this constellation, too, it would be possible to assess whether adoption is in the child’s best interests in the individual case and to use alternative indicators of stability, such as the duration of the relationship so far, instead of or in addition to the criterion of marriage.

d) Ultimately, the decision enshrining marriage as a constitutional value in Art. 6(1) GG also does not justify the different treatment of stepchildren in marital and non-marital families.

III. Given that the prevention of stepchild adoption disadvantages at least the affected children in an unjustified manner and is thus unconstitutional for that reason alone, there is no need to decide in this case whether the disadvantaging of unmarried couples in relation to married couples under adoption law amounts to a violation of Art. 3(1) GG in itself, even though couples could go through with the planned adoption after getting married.