Protection of marriage and family

The protection of marriage and the family is regulated in the various legal systems around the world . The regulations can be found in the constitutions and laws of the respective states as well as in international agreements.

International agreements

Article 16, Section 3 of the Universal Declaration of Human Rights stipulates:

"The family is the natural basic unit of society and is entitled to protection by society and the state."

The International Covenant on Civil and Political Rights states in Art. 23:

(1) The family is the natural core cell of society and is entitled to protection by society and the state.

(2) The right of men and women to enter into marriage and to found a family at marriageable age is recognized.

(3) A marriage may only be concluded with the free and full consent of the future spouse.

(4) The States Parties shall take appropriate measures to ensure that the spouses have equal rights and obligations at marriage, during marriage, and upon dissolution of the marriage. Care must be taken to ensure the necessary protection of children in the event of the marriage being dissolved.

Council of Europe

Article 8 Right to respect for private and family life under the ECHR protects the family.

European Union

The Charter of Fundamental Rights of the European Union protects marriage and the family in two of its provisions. Under Title II ("Freedoms"), the right to marry and to found a family is "guaranteed under national law" (Art. 9). Art. 33 within Title IV (“Solidarity”) guarantees legal, economic and social protection of the family. Article 33 (2) specifies this protection explicitly for the cases of protection against dismissal for the mother as well as paid maternity leave and parental leave.

Germany

The protection of marriage and family by the state is regulated in Germany in Article 6 of the Basic Law for the Federal Republic of Germany .

This places marriage and the family as an institution as well as family education under the special protection of the state and guarantees basic rights for spouses as well as parents and their children.

This special esteem for the family is based on the fact that, according to the constitution, it is the ideal environment for children to grow up without whom no state community can exist in the long term. The importance of marriage lies in the fact that it - as the “germ cell of the state” - is a preliminary stage to the family (as expressly stated in Article 119, Paragraph 1 of the Weimar Constitution : “Marriage stands as the basis of family life and the maintenance and increase of the Nation under the special protection of the Constitution. ").

Protection area

Protection of marriage

The bearer of the basic right ( personal area of protection ) is every natural person, not just married.

According to the principle of obligatory civil marriage , only civil-legal (i.e. civil) marriage is effective; a purely church wedding is not enough in Germany. If, however, such is sufficient abroad, the marriage effectively concluded there is also protected by Article 6 (1) of the Basic Law. Problems are caused by “limping” marriages, ie those that were concluded in Germany with a foreigner, but would only be valid under the law of his country of origin. The Federal Constitutional Court also regards such a community as a marriage within the meaning of the relevant paragraph 1, irrespective of the invalid form under civil law due to the formal marriage and the trust of the spouses.

In particular, the fundamental right guarantees freedom of marriage . The extent to which the right not to enter into marriage is also granted as a “negative freedom of marriage” is doubtful in view of the special protection of marriage: the opposite of marriage can hardly be equally protected. The freedom not to marry would therefore only be protected as part of the general freedom of action .

Against Art. 6 para. 1 GG the mandatory joint assessment violated the spouses for income tax , because of the progression of disadvantaged marriage versus cohabitation. The income splitting is a way to compensate for this disadvantage.

The registered civil partnership is not a marriage within the meaning of Article 6, Paragraph 1 of the Basic Law. The Federal Constitutional Court has ruled in its landmark judgment of 17 July 2002 that the Civil Partnership Act does not infringe the constitutional certain protection of marriage and family, but there is at least one judgment in German case law , the same-sex civil partnership not as a separate, but as Institute under the umbrella of Art. 6 GG. The Federal Constitutional Court, on the other hand, stated the following: “The special protection of marriage in Article 6, Paragraph 1 of the Basic Law does not prevent the legislature from providing rights and obligations for same-sex partnerships that are equal to or close to those of marriage”.

Protection of the family

Family is the community of parents with their children (“nuclear family”). The concept of the family is therefore actually meant - it is also used for unmarried couples with a common or non-common child and parents with a child . The spouses as such do not yet form a family. There is an entitlement to help to promote upbringing in the family ( Sections 16 to 21 of Book VIII of the Social Code). The Federal Constitutional Court has ruled in its unanimous decision of 19 February 2013 that registered partners that make up a life partner living with the biological or adopted child in social and family community, a protected by Article 6 para. 1 GG family within the meaning of the Basic Law.

The protection of the family is often associated with the right to refuse to testify . According to Section 383 of the German Code of Civil Procedure and Section 52 of the Code of Criminal Procedure, persons who are or were “related directly to the accused or who are related by marriage to the third degree or related by marriage to the second degree” have the right to refuse to testify, and there is reason to prohibit the use of evidence . There are different views as to whether the right of refusal aims to protect marriage and family or whether it aims to respect the witness's personality and only in this context takes into account the possible internal stress of the witness.

Free decision about the distribution of tasks in the marriage

According to today's interpretation of the constitution, Article 6 (1) of the Basic Law is understood as a right to defend against state interference in private life; It guarantees the right of the spouses to be able to determine for themselves and without government interference how they live together and how they distribute work, child-rearing and family responsibilities among themselves. The state must therefore avoid regulations that are likely to interfere with the free decision of the spouses about their distribution of tasks in the marriage . It must not fundamentally prohibit the spouses from choosing the wife's maiden name as the married name. In connection with the requirement of equal treatment according to Article 3, Paragraph 1 of the Basic Law, Article 6, Paragraph 1 of the Basic Law prohibits single-earner and double- earner marriage from being treated unequally for no objective reason, in that, for example, legal regulations are made in social insurance that are in the social Reality favor single-wage marriage.

Parental rights

Article 6 (2) of the Basic Law contains a value-determining norm in favor of both parents, be it mother or father. Even the illegitimate father nowadays has a parental right of fundamental rights quality due to the jurisprudence and as a result of the resulting amendment of the German Civil Code (BGB). Concretising norms for Art. 6 Abs. 2 GG are §§ 1626 and 1631 BGB . The most important right is the right to bring up parents. Determinations of the existence or non-existence of parental custody of a parent for their child are reserved exclusively for the family court (see Section 151 No. 1, in conjunction with Sections 152 and 153 FamFG ; exclusive jurisdiction of the family court). For all state powers (e.g. parliament, courts, youth welfare offices , schools , other authorities , administrations ) the parental right - as a fundamental right - is directly applicable law ( Article 1, Paragraph 3, Basic Law). The right of parents to bring up and care for their child or their children represents, on the one hand, a strong right of defense against all state powers - but on the other hand, itis limited and possibly limitedby special simple law and constitutional barriers (see e.g. §§ 1666 and 1666a BGB). Thestate authorities - in particular the executive authority in the social law procedure of child and youth welfare - are subject to limits and restrictionsfor interfering with parental rights or interfering measures, etc. As references and examples are listed here - with legal sources -:

Reservation of the law and obligation to give reasons (see § 35 SGB X , § 39 VwVfG ), d. H. Communication of the essential factual and legal reasons - therefore no authorization to intervene etc. 'without further ado'

Prohibition of arbitrariness and harassment ( Art. 3 Para. 1 GG), inadmissibility of exceeding the legally prescribed official powers (e.g. competences of the family court) → Ineffectiveness , nullity ( § 40 SGB X or § 44 VwVfG)

procedural participatory right in accordance with § 12 SGB X or § 13 VwVfG in public-law proceedings in the event of concern or legal interest

Primacy of the parents (scope and horizon of the word 'first of all' in Article 6, Paragraph 2, Sentence 1 of the Basic Law)

Inviolability of the essence of parental upbringing and care rights ( Article 19, Paragraph 2, Basic Law; see also essence , citation requirement )

Consideration of child welfare aspects (analogous to § 1697a BGB), also by the youth welfare office - however (only) within the scope of the positive official powers

Main goals of child and youth welfare (according to SGB VIII ); (see in particular Section 1 Paragraph 3 SGB VIII; Promotion and Protection of the Family: Section 1 Paragraph 1 Sentence 2 SGB I )

Requirements for the admissibility of measures connected with the separation of the child from the parental family; z. B. if the danger cannot be countered with public aid ( Section 1666a Paragraph 1 BGB)

Requirements for complete withdrawal of personal custody (see § 1666a Paragraph 2 BGB)

In general:

The principle of practical concordance to resolve conflicts in the event of collisions between fundamental rights for the purpose of creating an appropriate balance is to be dutifully applied (applies mutatis mutandis to mother and father in the internal relationship; § 1684 para. 2, § 1627 BGB)

Protection and care for mothers

The need for protection of mothers is emphasized in Article 6.4 of the Basic Law.

Equality of the child regardless of the marital status of the parents

In Article 6 (5) of the Basic Law, the mothers and fathers of the Basic Law emphasized the equality of illegitimate children as a special legislative task . This mandate was only tackled by the legislature in 1969 through the illegitimate law ; from July 1, 1970 to June 30, 1998, simple statute law used the expression “illegitimate” instead of “illegitimate”. The conceptual distinction has been completely abolished by the Childhood Law Reform Act . Legally and actually, however, the distinction continues to exist, for example in Section 1626a of the German Civil Code (BGB), regardless of violations of parental rights and the prohibition of discrimination (here due to the status of the child: illegitimacy / gender and status of the father: unmarried, not divorced, single) on the other hand.

Carrier o. G. Basic rights are all natural persons who are in a parent-child relationship, i.e. mother , father and child .

restrictions

Marriage and the family, like property, are legal institutions that must be shaped by the simple legal system. This happens above all in the 4th book of the BGB (" Family Law "). The institution of marriage, for example, by the marriageable age , § 1303 BGB, as well as marriage bans designed. However, the Federal Constitutional Court has declared excessive prohibitions (widowers and stepson; by-laws) to be null and void.

With regard to the right to protection of the family, Article 6, Paragraph 2, Clause 2 and Paragraph 3 of the Basic Law contain qualified legal reservations in order to be able to protect children in extreme situations (see, for example, the deprivation of custody in § 1666 BGB). In addition to the withdrawal of custody, the withdrawal of the right to determine the residence or the release for adoption by a guardianship court decision against the will of the parents are further possible restrictions.

The state guard office will u. a. exercised by the family courts and youth welfare offices (see in particular §§ 8a and 42 SGB VIII, criminal protection: see §§ 170 and 171 StGB ).

The compulsory of Art. 7 GG can not directly engage the parental educational right be considered under Art. 6, para. 2 GG. Rather, the state educational mandate from Art. 7 GG is on a par with parental rights; compulsory schooling thus restricts parental rights. The school relationship is a special legal relationship between school and pupil - in some ways quite similar to the civil servant relationship ; the students have some status rights on the one hand, and certain duties on the other.

According to Section 32 , immigration of children is restricted to foreigners in the Residence Act up to the age of 18 when the main focus of life is transferred to Germany. Without changing the focus of life, the limit for children to join applies up to the age of 16, unless the German language is mastered or an integration into the living conditions in Germany appears to be guaranteed.

Other states

Corresponding regulations for the protection of marriage and family can be found in the legal systems of other countries.

Individual evidence

↑ Universal Declaration of Human Rights # Article 16 on Wikisource
↑ International Covenant on Civil and Political Rights, concluded in New York on December 16, 1966 (translation) at www.admin.ch
↑ ^a ^b BVerfGE 105, 313 Judgment of the First Senate of July 17, 2002 - 1 BvF 1/01, 1 BvF 2/02 -
^ AG Frankfurt am Main, 40 UR III E 166/92
↑ bundesverfassungsgericht.de: Principles on the judgment of the First Senate of February 19, 2013
↑ GT Ragnarsson: The right of relatives of the accused to refuse to testify: the catalog of § 52 StPO in the mirror of generalized solutions in the criminal procedure codes of Iceland, Norway and Denmark , Peter Lang (ed.), 2008, ISBN 978-3-631-57314-3 , Pp. 105 –132 (Part One, § 5, Sections F. Protection of Marriage and Family and G. Summary )
↑ Sabine Berghahn u. a .: Spousal maintenance and the principle of subsidiarity under social law as obstacles to consistent equality of women in securing livelihoods. Project report (medium version) , Freie Universität Berlin, 2007, pp. 52–53 (PDF)
^ Federal Constitutional Court, judgment of the First Senate of March 12, 1975 - 1 BvL 15/71 u. a. - (Survivor's pension), BVerfGE 39, 169 (183) .
↑ ^a ^b Federal Constitutional Court, decision of the First Senate of May 31, 1978 - 1 BvR 683/77 - (family names), BVerfGE 48, 327 (338) .
↑ Federal Constitutional Court, decision of the First Senate of January 10, 1984 - 1 BvL 5/83 - (Maintenance III), BVerfGE 66, 84 (93) .
^ Federal Constitutional Court, judgment of the First Senate of November 17, 1992 - 1 BvL 8/87 - (unemployment assistance), BVerfGE 87, 234 (258) .

[1] Universal Declaration of Human Rights # Article 16 on Wikisource

[2] International Covenant on Civil and Political Rights, concluded in New York on December 16, 1966 (translation) at www.admin.ch

[bverfge_105_313-3] BVerfGE 105, 313 Judgment of the First Senate of July 17, 2002 - 1 BvF 1/01, 1 BvF 2/02 -

[4] AG Frankfurt am Main, 40 UR III E 166/92

[5] undesverfassungsgericht.de: Principles on the judgment of the First Senate of February 19, 2013

[6] GT Ragnarsson: The right of relatives of the accused to refuse to testify: the catalog of § 52 StPO in the mirror of generalized solutions in the criminal procedure codes of Iceland, Norway and Denmark , Peter Lang (ed.), 2008, ISBN 978-3-631-57314-3 , Pp. 105 –132 (Part One, § 5, Sections F. Protection of Marriage and Family and G. Summary )

[7] Sabine Berghahn u. a .: Spousal maintenance and the principle of subsidiarity under social law as obstacles to consistent equality of women in securing livelihoods. Project report (medium version) , Freie Universität Berlin, 2007, pp. 52–53 (PDF)

[8] Federal Constitutional Court, judgment of the First Senate of March 12, 1975 - 1 BvL 15/71 u. a. - (Survivor's pension), BVerfGE 39, 169 (183) .

[bverfge_48_327-9] Federal Constitutional Court, decision of the First Senate of May 31, 1978 - 1 BvR 683/77 - (family names), BVerfGE 48, 327 (338) .

[10] Federal Constitutional Court, decision of the First Senate of January 10, 1984 - 1 BvL 5/83 - (Maintenance III), BVerfGE 66, 84 (93) .

[11] Federal Constitutional Court, judgment of the First Senate of November 17, 1992 - 1 BvL 8/87 - (unemployment assistance), BVerfGE 87, 234 (258) .