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Germany: Gender Identity, Sexual Orientation and Parentage: Family Law Lagging Behind
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2020
- Published by:
- Intersentia
- Published online:
- 09 February 2021
- Print publication:
- 23 September 2020, pp 135-148
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Summary
Résumé
Après d’abondantes réformes législatives en 2017 et 2018, les plus récents développements du droit familial allemand sont largement le fait des tribunaux. Une fois de plus, les hautes instances judiciaires agissent comme des acteurs de changement, particulièrement en présence de situations de fait pour lesquelles aucun encadrement légal n’est prévu. C’est le cas pour l’identité de genre, les parents de même sexe, la gestation pour autrui et les beaux-parents de facto. Même si certaines réformes ont vu le jour à l’égard de ces situations, il reste que de nombreux changements sociétaux fondamentaux et de transformations de la vie familiale font encore l’objet de débats et ne jouissent d’aucune reconnaissance légale.
INTRODUCTION
Following an abundance of legal reforms in 2017 and 2018, more recent developments in German family law have largely been prompted by court involvement. Once again, the highest German courts are acting as drivers for reform, particularly in instances where the law does not offer a legal framework for a number of de facto situations. This is true in relation to gender identity (Section 2), same-sex parentage (Section 3) and surrogate motherhood (Section 4) as well as for de facto step-parents (Section 5). While some legal reforms have arisen through these cases, many of the fundamental societal changes and transformations of family life are still being discussed and still lack legal recognition.
GENDER IDENTITY: OPTIONS FOR TRANSSEXUAL AND INTERSEXUAL PEOPLE
Following a landmark decision by the German Federal Constitutional Court in 2017, the German Personal Status Act (Personenstandsgesetz (PStG)) was changed, and a third legal category of gender – ‘diverse’ – was introduced. Mandatory birth registration still includes a section to define the child's gender, but it now offers the additional category of ‘diverse’ in addition to ‘female’ and ‘male’. There is also the possibility of not stating the child's gender in cases of gender variabilities, German Personal Status Act, section 22 paragraph 3. The pre-existing possibility of simply leaving this section blank if the child’s gender could not be determined as female or male was rejected by the Federal Constitutional Court as insufficient to express the person's gender identity.
The Recognition of Religious Private Divorces in Europe: From Conflict of Laws to Conflict of Cultures?
- from PART V - EXTRA-JUDICIAL DIVORCES AND ADR IN FAMILY MATTERS
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- By Katharina Kaesling, Habilitation candidate and Research Coordinator at the Käte Hamburger Center for Advanced Study ‘Law as Culture’, University of Bonn.
- Edited by Katharina Boele-Woelki, Dieter Martiny
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- Book:
- Plurality and Diversity of Family Relations in Europe
- Published by:
- Intersentia
- Published online:
- 09 November 2019
- Print publication:
- 29 August 2019, pp 257-284
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Summary
THE APPLICATION OF RELIGIOUS LAW AS A CONSEQUENCE OF PRIVATE INTERNATIONAL LAW
In Puccini's opera Madame Butterfly, the protagonist argues that Japanese divorce law does not apply to her marriage, since she married a US citizen. She therefore does not consider herself to be available for marriage after her husband abandoned her. Which law is applicable to situations involving international elements is determined by rules on the conflict of laws. These rules foresee relevant connecting factors, such as the habitual residence, domicile or nationality of the persons concerned in order to determine the law that is most closely connected to the pertinent legal question. Von Savigny refers to the seat (Sitz) or home (Heimat) of a legal relation. Conflict of law rules can thus in principle lead to the application of every legal order worldwide. It is one of the fundamental principles of private international law that all legal systems are considered equal. The application of conflict of law rules is termed a ‘leap into the unknown’. The applicable law is selected independently of political considerations or policy objectives by means of an abstract and policy-neutral reference system. It can thus be said that the rules on the conflict of laws are apolitical in nature.
However, Von Savigny saw the principle of the equality of all legal systems as strongly related to Christianity as a unifying element, more specifically as a common bond of spiritual life embracing the most diverse nations and casting their characteristic differences more and more into the background. His understanding excludes legal orders based on the Jewish faith, Islam and nonmonotheistic religions. While the rules on the conflict of laws generally refer to legal orders of territorial nation states, they also respect the state's decision to declare subsets of rules to be applicable, for instance bodies of regional or religious law. Especially in matters relating to the family, the concerned individuals’ religious affiliation is oft en deemed relevant. The application of religious law, most often ‘Islamic law’, in European countries has therefore habitually been the result of conflict of laws mechanisms. It is by no means a new occurrence.
Germany Law Reforms in Abundance
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- By Nina Dethloff, Director of the Center for Advanced Study ‘Law as Culture’ and of the Institute for German, European and International Family Law, University of Bonn, Germany, Katharina Kaesling, Research Coordinator, Center for Advanced Study ‘Law as Culture’, University of Bonn, Germany
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2018
- Published by:
- Intersentia
- Published online:
- 31 January 2019
- Print publication:
- 28 September 2018, pp 211-220
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Summary
INTRODUCTION
In stark contrast to the sparsity of law reforms in the field of family law during the preceding years of the last legislative period, towards its end the legislature made up for this lack of activity by quickly enacting several bills which brought about significant changes. Whereas some of those reforms had been in the making for a while, others came with utter speed and as a total surprise. The latter was in particular the case with by far the most important and widely recognised reform, the opening of marriage to same-sex couples (section 2). A law reform which was equally hotly debated in public concerned the issue of child marriages that, owing to the increase of refugees in Germany, had led to court decisions on the recognition of marriages of minors concluded abroad (section 3). Another reform spurred by the refugee influx concerned the newly introduced procedure to prevent fraudulent acknowledgements of paternity, such as for purposes of obtaining nationality (section 4). Ultimately, with a view to the constitutionally guaranteed right of the child to know its genetic origins, a registry for official sperm donations was created while at the same time finally excluding the previously still existing possibility of establishing paternity of the donor (section 5).
MARRIAGE FOR ALL?
MARRIAGE FOR SAME-SEX COUPLES
After Chancellor Angela Merkel softened her stance on same-sex marriage by allowing a free ‘vote of conscience’ for her party's parliamentary group, a bill legalising same-sex marriage passed the German Parliament (Bundestag) on 30 June 2017 and the Federal Council (Bundesrat) seven days later. As of 1 October 2017, marriage has been available both to partners of the same and different sex according to the German Civil Code, section 1353 para. (Bürgerliches Gesetzbuch).
Provisions on marriage are now applicable interchangeably to same-sex and different-sex couples. This includes full joint adoption rights, which is one of the major changes brought about by the legalisation of marriage for same-sex partners. Even though benefits granted to registered life partnerships (the German civil partnership for same-sex couples) were gradually extended, this never included joint adoption rights. A non-biological child could only be adopted by one partner alone and initially the other partner was prohibited from even subsequently adopting the child.
Family Life and EU Citizenship: The Discovery of the Substance of the EU Citizen's Rights and its Genuine Enjoyment
- from PART FIVE - TRANSNATIONAL FAMILIES: ACROSS NATIONS AND CULTURES
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- By Katharina Kaesling, University of Bonn
- Edited by Katharina Boele-Woelki, Nina Dethloff, Werner Gephart
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- Book:
- Family Law and Culture in Europe
- Published by:
- Intersentia
- Published online:
- 22 November 2017
- Print publication:
- 25 July 2014, pp 293-304
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Summary
First and foremost, families in the European Union have to look to the national bodies of law regulating their legal relationships. On the EU level, the conflicts of laws as well as jurisdiction and the recognition and enforcement of judgments in family matters have been dealt with, but there is virtually no EU substantive family law. The same is true for the regulation of immigration. Article 79 TFEU allows for limited legislative action in accordance with the underlying principles of subsidiarity and proportionality in the areas of law enumerated in Article 79(2) TFEU. In spite of that commitment, the development of a common EU immigration policy is still a dream for the future. Family reunification policy has not been agreed upon within the European Union. However, on the basis of European Union citizenship, a remarkable body of case law regarding the family life of EU citizens with third country nationals has emerged. Hence, EU law increasingly influences family life in the European Union.
EU CITIZENSHIP AS A TRIGGER FOR FUNDAMENTAL EVOLUTIONS
EU citizenship is intrinsically related to the EU's integration process and has brought about significant evolutions.
MOVING BEYOND THE MARKET RATIONALE
Moving beyond the market rationale, EU citizenship was introduced by the Treaty of Maastricht, thus at a time when the European Economic Community transformed into the European Union. The original Treaty of Rome presupposed not only Member State nationality, but also economic activity in order to enjoy the fundamental freedoms. However, these economically active ‘market citizens’ only represent a portion of EU citizens.
EU citizenship shows that the European Union's aspirations go beyond the traditional economic rationale. Free movement is no longer for economically active persons only. Instead, EU citizenship is designed to be the fundamental status of the nationals of all Member States, as the Court of Justice of the European Union (CJEU) has repeatedly held and as EU legislative acts confirm. All EU citizens have a right to move and reside freely within the Union and corresponding rights are granted to their family members, irrespective of their nationality, but under certain conditions. These conditions are in particular laid out in the Citizens’ Rights Directive.