INTRODUCTION

In Germany, family procedural law is codified in the Family Procedure Act (Gesetz ü ber das Verfahren in Familiensachen und in den Angelegenheiten der Freiwilligen Gerichtsbarkeit, FamFG). Separate from the German Civil Code of Procedure (Zivilprozessordnung, ZPO), the FamFG intends to ensure that all matters relating to family law proceedings take place before one and the same ‘large court’ – the family court. Family courts are part of the ordinary jurisdiction with special assignments.

With a total of 13,504,000 minors in Germany in 2019, the number of proceedings in parent and child issues as well as parentage and adoption matters before the local courts (Amtsgericht, AG), in which departments are competent as family courts of first instance, came to approximately 179,209. Before the Higher Regional Courts (Oberlandesgericht, OLG), competent in the second instance, the number equalled approximately 6,261 in 2019.

The provisions on family law in the German Civil Code (Bürgerliches Gesetzbuch, BGB) and the ones in the FamFG provide various possibilities for the child's participation. In parent and child matters (§ 151 FamFG) as well as parentage (§ 169 FamFG) and adoption matters (§ 186 FamFG), children are usually directly affected themselves, meaning that they must be involved as parties (§ 7 para. 2 No. 1 FamFG). In parent and child matters children must be heard from the age of 14 (§ 159 para. 1 FamFG). With the new law passed by the legislature on 25 March 2021, the mandatory child hearing under §159 para. 1 FamFG-New will be independent of the child's age. In parentage matters the court should hear children from the age of 14 (§ 175 para. 2 FamFG). In adoption matters the hearing of the child is mandatory for all children (§ 192 para. 1 FamFG). However, they are only capable of participating themselves insofar as they have reached the age of 14 and are asserting one of the few rights of objection and participation granted under civil law 10 (§ 9 para. 1 No. 3 FamFG). Children who are incapable of participating in proceedings are represented by their parents. 11 In accordance with § § 181, 1629 para. 2 and 1795 BGB, the parental representation of minors is excluded by law in certain cases of serious conflicts of interest, for example when contracting with the parent him/herself.

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.

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.

The fifth conference of the Commission on European Family Law (CEFL) on ‘Family Law and Culture in Europe: Developments, Challenges and Opportunities’ was held in Bonn in August 2013 in collaboration with the University of Bonn and the Käte Hamburger Center for Advanced Study in the Humanities ‘Law as Culture’, which aims to contribute to an understanding of the cultural dimension of law and the promotion of the research on law from the perspective of the humanities. The participation of more than 200 participants from around 33 countries made the conference a valuable experience and fostered a stimulating discussion during the three conference days.

The discussions were introduced by eminent conference speakers from all over Europe. Additionally, twelve young researchers from eight different countries were selected after a call for papers. They presented their research in four parallel working groups which addressed Cross-Border Family Relationships, Transnational Families, The (Un-)Wanted Child, and the Relationship Breakup. Their papers are also included in this volume.

The book consists of five parts. It starts with four presentations of the CEFL Principles on Property Relations between Spouses. Part 2 examines the breakup of (non-)formalized relationships with special reference to unmarried cohabitation and the current debate on its legislation. It also addresses alternative instruments of conflict resolution in family law like the Irish collaborative law approach. Part 3 analyses the interdependence between legal, social and biological parenthood. It also deals with the problems of cross-border surrogacy as well as mechanisms for the anonymous relinquishment of children and baby boxes. It ends with a contribution on legal issues concerning stepfamilies. Part 4 addresses the legal aspects on international family relationships and contains a critical view on the 2011 Proposal for a Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. It also analyses the notion of ‘habitual residence’ in European family law and refers to the criteria of nationality and domicile as a connecting factor for private international law questions regarding same-sex relationships. Finally, Part 5 reveals interesting aspects of transnational families such as the EU citizenship.

INTRODUCTION

Honore de Balzac proclaimed that to enter into a marriage contract was one of the holiest duties of a couple about to get married. In his novel Le contrat de mariage he describes the long and intricate negotiations that traditionally took place in France before marriage, not only in aristocratic but also in bourgeois families. Contracts with regard to matrimonial property are to date an integral part of most Continental European legal systems, as is the ensuing freedom of contract. In English common law, on the contrary, pre- or post-nuptial contracts were for a long time considered to violate public policy, and only recently have courts begun to accord them a role in the granting of financial relief upon divorce.

This controversy about party autonomy and its boundaries goes to the heart of marriage and family law: in family law, contracting can affect either the parentchild relationship, as do agreements on the exercise of parental responsibility, or affect affiliation or surrogacy agreements. Such contracts involve children as third parties, who are in particular need of the state's protection. Different questions generally arise when adults enter into agreements concerning their relationship: why and to what extent should they be free to determine the rights and obligations during the existence or upon the dissolution of their relationship? The degree to which couples may regulate their partnership by contract raises fundamental questions as to the role of marriage law in pluralistic societies. What is the state's role vis-a-vis increasingly diverse forms of partnerships and in view of a growing acceptance of different life styles and religious or ideological views? The answers to these questions vary: on the one hand, according to a postmodern view, we can dispense with marriage law completely and the regulation of intimate relationships should be left to private ordering. On the other hand, there is a marked tendency to create new types of partnerships in response to the increasing diversity of family life. In many Western countries, registered partnerships or civil unions provide new options for couples. In some parts of the US, state-sponsored alternative forms of marital agreement such as covenant marriages have been introduced. State regulation of de facto relationships or cohabitation has also increased, especially with regard to the provision of certain financial adjustments upon the dissolution of the partnership.