Problem:
The German adoption law is regulated in the BGB in §§ 1741 ff. Adoptions are not possible freely according to the will of the parties involved, but only under certain conditions (§ 1741 para. 1 BGB: Promotion of the best interests of the child; expected parent-child relationship). This also applies to the adoption of adults (§ 1767.1 of the Civil Code). In addition to these (probably generally understandable) preconditions, however, § 1741.2 of the Civil Code contains an important restriction: A person who is not married can only adopt a child alone; only one spouse can adopt a child of his or her spouse alone. According to the law, adoption by the step-parent would result in the relationship to the other parent being terminated.
example: If the unmarried stepfather wanted to adopt the child of his life partner, an adoption would mean that the child would no longer be the child of the life partner when the adoption became effective. Of course, this is not wanted.
These obstacles lead to problems in reality: Although the stepparent and child may have lived together for many years, there would be no special legal relationship between stepfather and child, e.g. no legal right of inheritance and no right to a compulsory portion, after a separation of stepfather and natural mother. In inheritance tax law (§ 15 ErbStG) stepchildren are largely treated in the same way as natural children. But only the children of the other spouse are considered “stepchildren” there.
Decision:
The Federal Constitutional Court considers this categorical exclusion of the law to be unconstitutional. The general principle of equality, Article 3.1 of the Basic Law, was violated because children in illegitimate stepchild families were unjustly disadvantaged.
The purpose of the law is to allow stepchild adoption only where the cohabitation promises stability. If one parent and one step-parent separate before a sustainable relationship between step-parent and child has been established, the child would be bound to the step-parent as a result of the adoption – even after separation. According to the law, a cancellation of an adoption is only possible in exceptional situations and could therefore not solve this problem. The Federal Constitutional Court also considers this aim of the legislature to be legitimate.
However, the law does not allow for an examination of the individual case at the moment. The stability criterion under the current law is marriage alone; other factors and indicators are not allowed. Stable non-marital stepchild families have no opportunity to successfully demonstrate the stability of their family in the adoption procedure.
The legislator was asked to amend the law by 31 March 2020. Adoption procedures that have the aim of bringing about stepchild adoption without the relationship to the existing parent being terminated must be suspended.
Practical advice:
The decision has of course a very big meaning and effect. It remains to be seen how the legislator will react. He must now find criteria to determine the stability of a non-marital partnership. Certain criteria for this can already be found in § 7 Para. 3 No. 3 c) of the SGB II (definition of a community of convenience for non-married persons). § 7.3a of this Act also contains presumptions as to when a “mutual will to bear responsibility for one another” is assumed. However, this is initially only a consideration of mine. Whether some of these criteria can also be adopted by the legislature in the case of adoption remains to be seen. It seems very likely, however, that the legislator will in any case demand a minimum period of living together, because at least that is an indicator of stability. However, in the legislative procedure it can also come differently…
Whether one should apply for adoption now or wait for the new legal regulation is a question of weighing up. Certainly not every non-marital cohabitation will be favoured. But in any case, if haste is required and the relationship is considered stable according to human judgement, quick action can be recommended.
We are at your disposal for an individual consultation!