illegitimacy

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Illegitimacy , Nichtehelichkeit or Außerehelichkeit referred law, the birth of a child outside of an existing marriage , so if the bodily mother and biological father are not married; It used to be called Il legitimacy and was considered a mark of honor . In contrast, marital status describes the birth of a child within a marital relationship or its legal recognition as a legitimate child.

frequency

On average in the European Union , the proportion of children born out of wedlock was 42% in 2015. In eastern Germany the proportion was almost 60% in 2014, and almost 30% in western Germany. If the 28 EU states are considered together with Iceland , Liechtenstein , Norway and Switzerland , then Iceland was the frontrunner in 1960 with 25%, followed by Austria with 13% and Sweden with 11% illegitimate births. In Iceland as early as 1990, illegitimacy was more common than marriage; Sweden, Estonia and Norway followed in 2000, Slovenia, Bulgaria, France in 2010 and 2015 also Denmark, Portugal and the Netherlands. In 2015, out of wedlock in Greece, Cyprus, Croatia, and Liechtenstein was comparatively rare at less than 20% each, while the other countries mentioned were far higher.

Out of 497 European regions, the French department of Aube was at the top for births out of wedlock in 2012: almost three quarters of babies (72.4%) had unmarried parents.

Governing Law

Germany

Since 2011, German law no longer distinguishes (also conceptually) between legitimate and illegitimate children. The terms “illegitimate child” and “legitimate child” only appear in Article 6, Paragraph 5 of the Basic Law (GG).

The subtitle ( §§ 1615a – 1615n BGB ) on the maintenance obligation in the Civil Code has been entitled "Special regulations for the child and his or her unmarried parents" since July 1, 1998. The differences in maintenance law were abolished as part of this reform, since then these children can also belong to a community of heirs . Since 1998, the youth welfare office has only been active in the context of voluntary assistance in matters of paternity and maintenance. In 1998, old custodial offices were legally converted ex officio into deputies ("old cases"). Furthermore, in order to avoid the terms illegitimate and not in wedlock in the German Civil Code (BGB) u. a. in § 1791c Paragraph 1 now: With the birth of a child "whose parents are not married to each other [...]".

In all other federal laws, the legislature changed the wording to include illegitimate children on July 1, 1970 through the illegitimate act . Since then, the illegitimate child has been under the parental care of the mother, previously the youth welfare office had always been the official guardian . In German law , a child is considered to be out of wedlock if it was born to an unmarried mother or a woman whose marriage was dissolved by the death of the spouse for more than 300 days or by a divorce decree that was legally binding on the day of birth (legal situation since July 1, 1998). A child is also out of wedlock if its paternity has been successfully challenged by a paternity report.

Inheritance law

In all inheritance cases after May 28, 2009, all children have the same inheritance rights and become all participants in the community of heirs, regardless of whether and when their parents were married.

In the case of inheritance before April 1, 1998, the illegitimate child had a right to inheritance upon the death of the father; before death, the child between the ages of 21 and 27 could request an early inheritance compensation.

On April 1, 1998, the Equal Inheritance Law came into force, with the right to inheritance compensation and inheritance compensation ceasing to apply. The illegitimate children, insofar as they were born after July 1, 1949, now had the same inheritance rights vis-à-vis their father as legitimate children. The illegitimate child becomes part of the deceased's community of heirs.

The European Court of Human Rights ruled on May 28, 2009 that the inheritance disadvantage for people born before July 1, 1949 violated the European Convention on Human Rights. The law on inheritance equality of illegitimate children of April 12, 2011 was promulgated in the Federal Law Gazette on April 15, 2011 (Federal Law Gazette 2011, Part 1 No. 17, p. 615). For deaths after the law came into force, all children born out of wedlock before July 1, 1949 are also treated as legitimate children. They inherit their fathers as legal heirs. The new regulation can be extended to deaths that only occurred after the decision of the ECHR on May 28, 2009. Because since the decision, the heirs appointed under the old law could no longer rely on their inheritance. For children born out of wedlock whose fathers died before May 29, 2009, the constitutional prohibition of retroactivity meant that the previous legal situation had to remain in principle, as confirmed in a ruling by the Federal Constitutional Court on March 17, 2013. The ECHR declared this cut-off date regulation to be contrary to human rights. If the state itself has become an heir (§ 1936 BGB) because there were no relatives, spouses or partners or because the inheritance was rejected, the state has to pay out the value of the property it has inherited to the illegitimate children concerned.

In the GDR , the distinction between legitimate and illegitimate children had already been abolished in 1950.

Austria

§ 138c , § 138d to legitimacy and § 161 to legitimize the illegitimate children by the subsequent marriage of the General Civil Code (Civil Code) say (as of 2/2009):

§ 138c. (1) legitimate is a child born during the marriage of the mother to his father or, if the marriage was dissolved by the death of the husband, within 300 days thereafter; otherwise the child is illegitimate.
The presumption of marital status
§ 138c. (2) If the parents' marriage is declared null and void, the child remains legitimate.
Section 138d. (1) If a child is born within 300 days of divorce or the annulment or annulment of the marriage, it becomes legitimate if the mother's former husband acknowledges paternity or is determined by the court to be the father.
Section 138d. (2) If a child is born more than 300 days after the dissolution or annulment of the marriage, the court shall, at the request of the child or the mother's former husband, determine the parentage and the marital status of the child if it is proven that this Child was conceived during marriage by the mother's husband or by medically assisted procreation using the husband's semen or, if the husband has consented to this in the form of a judicial record or a notarial act, with the semen of a third party.
Section 161. (1) If the paternity of the child has been established and the father and mother of the child marry, the child becomes marital at the time of his parents' marriage.

The rules on marital and illegitimate status relate in particular to the family name (§ 139 ABGB), citizenship ( § 7 Citizenship Act 1985 Descent (Legitimation) ), maintenance (§ 140ff ABGB) and custody (§ 144ff ABGB), as well as matters of inheritance .

In addition, the - until January 31, 2013 still legally binding - § 162 ABGB legitimation of illegitimate children by favoring the sovereign (the power to legitimize by grace now belongs to the Federal President ): "An illegitimate birth can affect a child's civil respect and do no harm to his progress. "

European law

European Convention on the Status of Children Out of wedlock

The European Convention on the Legal Status of Children born out of wedlock of Strasbourg in October 1975 aims to “improve the legal status of children born out of wedlock”; it clarifies the following issues (as of February 2009):

  • "The maternal descent of every illegitimate child is based solely on the birth of the child" (Art. 2)
  • "The father and mother of an illegitimate child have the same maintenance obligation towards this child as towards a legitimate child" (Art. 6 no. 1), or correspondingly "certain members of the family" who are responsible for maintenance (Art. 6 no. 2)
  • "Through the marriage between the father and the mother of an illegitimate child, this child receives the legal status of a legitimate child." (Art. 10)

It also clarifies, for example, that “parental authority cannot be granted to the father alone by law” and in principle “must be able to be transferred” (Art. 7), as well as questions of paternity determination and acknowledgment of paternity (Art. 3–5).

Another important regulation is § 9, which grants the illegitimate child "the same rights to the estate of his father and mother and to that of the members of their families", "as if it were legitimate". Austria reserved this article, it is not yet legally valid there.

The agreement has been ratified by: Azerbaijan 2001, Denmark 1980, Georgia 2002, Greece 1988, Great Britain 1981/1988/1994/1997/2004, Ireland 1988, Latvia 2004, Liechtenstein 1997/1998, Lithuania 1997, Luxembourg 1982/1988/1994/2002 / 2007, Macedonia 2004, Moldova 2002, Norway 1980, Austria 1980/1986, Portugal 1982, Poland 1997/2004, Romania 1993, Sweden 1980, Switzerland 1980, Czech Republic 2001 and Cyprus 1980.

European agreement on legitimation through subsequent marriage

The European Convention on Legitimation by Subsequent Marriage in Rome on September 10, 1970 regulates how recognitions of premarital children are mutually recognized and "also applies to [legitimations] that are subsequently determined by a court decision."

The agreement was ratified by: France 1976, Greece 1987, Italy 1978, Luxembourg 1983, Netherlands 1977, Austria 1976, Turkey 1976, Switzerland 1976.

Historical

The illegitimate child usually had the mother's surname ; if the mother was noble in historical times, then without a noble title . However, it is not uncommon for the child to adopt the family name of the father after acknowledging paternity or to receive it through the later marriage of the parents. But even after marriage, it happened in centuries past that the child who was baptized in the mother's name kept her maiden name.

In the case of very unequal social status, the fathers often legitimized their illegitimate children by marrying them on their deathbed or by declaring marital status .

In the genealogy , illegitimate children are also called illegitimate children (literally: 'illegitimate') and, with their few personal details, also regarding the mother, are often so-called dead spots . According to the will of Joseph II , fathers of illegitimate children in the Habsburg Empire were only to be entered in the registers at their own request from 1784 onwards. Many parishes, which had a registry office function here from 1784 to 1938, created their own list for the fathers. For pastors , a premature birth was occasionally an occasion to subsequently delete the word “ virgin ” in the grape book . If the impregnation or premarital sexual intercourse was already known at the wedding, the wedding usually took place "in silence" and "without singing or singing". Because of the higher child mortality among illegitimate people, who are often disadvantaged by the milieu, they are represented far less often in ancestral lists than one might expect based on these percentages.

In Württemberg, freedom of marriage was proclaimed in 1807, and a more liberal system of marriage licensing was introduced in Bavaria in 1808. Under pressure from the communes, since marriage was closely linked to civil rights and support in the case of poverty, and in the wake of the July Revolution in Paris in 1830, restrictive marriage restrictions were again created and tightened again after the revolution of 1848. Before the founding of the empire, there was extensive marital freedom only in Prussia, and to a lesser extent in Saxony, the Palatinate on the left bank of the Rhine, and some duodec chiefs . In Württemberg, before the establishment of the Reich in 1871, those wishing to marry had to prove that they had joint assets of 1,000 guilders. A marriage commission examined this, but also the behavior and "performance" of the bride and groom. The application had to be accompanied by a certificate from the employer stating the level of earnings, job security and general conduct. Due to such obstacles, 17% of all children in Württemberg were born out of wedlock before 1871, in Bavaria 25%. After the introduction of freedom of marriage, the numbers halved within a few years.

Around 1900 the share of illegitimate births in cities like Leipzig and Dresden reached almost 20%. During the two world wars, millions of men were long away from their homeland; they fathered numerous occupation children with local women . Since the 1950s, illegality rates have increased enormously; they reach regional values ​​of around 50%.

In Prussia , the annual illegitimate birth rate from 1816 to 1914 was between 7% and 10%, from 1915 to 1931 it was between 10% and 14%. The non-marital birth rate in East Germany remained below 15% each year until 1970, in Germany until 1983, in West Germany until 1998.

Depending on the cultural and social environment, illegitimate births were or are considered a shame for the mother and the child. Illegitimate children had to face sanctions at times, for example not being accepted into the craft guilds. This should deter people (according to a book published in 1700) from "carnal crimes" ; they should know that their illegitimate sons would be punished.

Such children could not receive church ordinations either. In the Roman Catholic Church, birth out of wedlock was considered an obstacle to ordination until 1983 .

From the 12th century onwards, the rulers turned to Roman law. The illegitimate were able to partially help with church dispensations and stately legitimations.

Some homeland films of the 1950s and 1960s addressed the topic of illegitimate children. Up until the 1970s, it was customary to distinguish between “legitimate”, “bogus” and “illegitimate” children.

Since the terms “illegitimate child” and “illegitimate child” were often synonymous and sometimes implied a distinction ( discrimination ) from “legitimate child”, the distinction was abolished in Germany by the 1998 reform of the child . Until June 30, 1998, the mother was assigned the youth welfare office as the official guardian , who was responsible for questions of paternity recognition or determination of paternity , maintenance , naming rights and inheritance rights of the child (§§ 1706 ff.BGB in the version up to June 30, 1998) . However, the mother was able to apply for sole custody .

Outdated names for illegitimate children

Outdated and disparaging terms for illegitimate children are bastard and banker , also bankart , (actually the child conceived on the maid's bed, not in the master's bed). from which swear words developed.

The term Kegel has been retained in the phrase with child and Kegel , which actually means "with legitimate and illegitimate child", whereby Kegel also refers to children from previous marriages of a current spouse who could be legitimate.

Arts and Culture

An example of a song about a child born out of wedlock is Love Child by Diana Ross and The Supremes from 1968.

See also

literature

  • Sybille Buske: Miss mother and her bastard. A history of illegitimacy in Germany 1900 to 1970. Wallstein, Göttingen 2004, ISBN 3-89244-750-0 (doctoral thesis University of Freiburg i. Br. 2003).
  • Beate Engelen: Soldiers' Wives in Prussia: A structural analysis of garrison society in the late 17th and 18th centuries (= rule and social systems in the early modern times. Volume 7). Lit, Münster u. a. 2005, ISBN 3-8258-8052-4 (Zugl .: Potsdam, Univ., Diss., 2003).
  • Raimund Friedl: The cohabitation in imperial Rome (= Historia / individual writings. H. 98). Franz Steiner, 1996, ISBN 3-515-06871-6 (doctoral thesis University of Tübingen 1994).
  • Claus Heinrich Gattermann : On the fringes of society? Illegitimate births in Göttingen from 1875 to 1919. Universitätsverlag, Göttingen 2009, ISBN 978-3-940344-84-7 .
  • Karin Gröwer: Wild marriages in the 19th century: The lower classes between urban population policy and police repression - Hamburg, Bremen, Lübeck (= ways of life. Volume 13). Reimer, Berlin / Hamburg 1999, ISBN 3-496-02677-4 .
  • Ludwig Schmugge, Béatrice Wiggenhauser (Hrsg.): Illegitimität In Spätmittelalter (= writings of the historical college / colloquia. Volume 29). Oldenbourg, Munich 1994, ISBN 3-486-56069-7 .
  • Ludwig Schmugge, Hans Braun: Dispensations and legitimizations by the penitentiary for illegal Alemannic cities (approx. 1475-1500). Case studies from the dioceses of Basel and Constance. In: Knut Schulz, Elisabeth Müller-Luckner (ed.): Craft in Europe: From the late Middle Ages to the early modern period. Oldenbourg, Munich 1999, ISBN 3-486-56395-5 , p. 33 ff.
  • Peter Stephan: Ditfurt: Demography and social history of a rural community north of the Harz over 400 years (= Harz research. Volume 17). Lukas, Berlin 2002, ISBN 3-931836-80-0 (with more precise statistics over 300 years).
  • Association "Documentation of Biographical Records" (ed.): "Born as an unmarried child": Autobiographical stories 1865–1945. Published by the Institute for Economic and Social History at the University of Vienna. Böhlau, Vienna 2008, ISBN 978-3-205-77284-2 .

Web links

Wiktionary: Illegitimacy  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Entry: Legitimation 2). In: Herders Conversations-Lexikon . Volume 3. Freiburg im Breisgau 1855, p. 730.
  2. ^ A b Jan-Tobias Peterle: The development of illegitimate births in Europe. In: fowid.de . November 29, 2017, accessed May 5, 2020.
  3. ↑ Report (afp): In East Germany there are still significantly more illegitimate children than in the West. In: The world . July 15, 2016, accessed May 5, 2020.
  4. ↑ Report (dpa): Study: children yes, marriage no - number of illegitimate births is increasing. In: Hamburger Abendblatt . November 15, 2012, accessed May 5, 2020.
  5. ↑ see Ansgar Kregel-Olff: The influence of the European Convention on Human Rights and the case law of the European Court of Human Rights on German inheritance law. Peter Lang Verlag, 2011, ISBN 978-3-631-61967-4 , p. 120 ff.
  6. ↑ Uli Deck: Family: Older people born out of wedlock continue to be disadvantaged in inheritance. In: Augsburger Allgemeine , undated, accessed on March 3, 2019.
  7. ↑ Illegitimate children in Germany: court reprimands unequal treatment In: taz .
  8. ^ Family Code of the GDR (FGB) of December 20, 1965. (No longer available online.) In: verfassungen.de. Archived from the original on April 14, 2006 ; accessed on March 3, 2019 .
  9. ↑ according to Art. 65 para. 2 lit. d B-VG
  10. ↑ European Agreement on the Legal Status of Illegitimate Children , full version on admin.ch .
  11. ↑ a b StF: Federal Law Gazette No. 313/1980.
  12. ↑ European Convention on Legitimation through Subsequent Marriage , ris.bka
  13. ↑ Rodoslovci v tujini. In: www2.arnes.si, accessed on March 3, 2019.
  14. ↑ Klaus Laabs: Lesbians, Gays, Registry Office. The gay marriage debate. Ch. Links Verlag, 1991, ISBN 3-86153-020-1 , pp. 72–76 ( limited preview in Google book search)
  15. ^ Franz Rothenbacher: Historical household and family statistics of Germany 1815-1990. Campus Verlag, 1997, table 2.8.4, p. 151.
  16. ↑ Federal Statistical Office.
  17. ^ Anton Wilhelm Ertl: Praxis Aurea, De Iurisdictione Inferiore, Civili & Bassa Vulgo From lower jurisdiction, inheritance court, bailiff authorities and Hofmarck court. Bleul, Nürnberg 1700, p. 231 ( online in the Google book search)
  18. ^ Hugo Goeke: illegitimate birth as an obstacle to consecration. New biography of Gerhard Hirschfelder (1). (No longer available online.) In: kirchensite.de. Diocese of Münster, October 10, 2010, archived from the original on October 10, 2010 ; Retrieved March 3, 2019 (article from September 13, 2010).
  19. ↑ Ludwig Schmugge, Hans Braun: Dispense and legitimization by the penitentiary for illegal Alemannic cities (approx. 14750-1500). Case studies from the dioceses of Basel and Constance. In: Knut Schulz, Elisabeth Müller-Luckner (eds.): Crafts in Europe: From the late Middle Ages to the early modern times (= writings of the Historical College: Colloquia, Historical College Munich. Volume 41). Oldenbourg Verlag, Munich 1999, ISBN 3-486-56395-5 , p. 33 ff. ( Limited preview in Google book search)
  20. ^ Yara-Colette Lemke Muniz de Faria: Between care and exclusion. Afro-German “Occupation Children” in post-war Germany (= Technical University Berlin. Center for Research on Antisemitism [Ed.]: Documents, Texts, Materials. Volume 43). Metropol, Berlin 2002, ISBN 3-932482-75-1 , p. 28 (Zugl .: Berlin, Techn. Univ., Diss., 2000).
  21. ↑ Duden online: Bankert. accessed on March 3, 2019.
  22. ↑ Duden "Etymologie", dictionary of origin of the German language. 2nd, completely revised and expanded edition by Günther Drosdowski (Hrsg.) (= Der Duden. Volume 7). Dudenverlag, Mannheim / Vienna / Zurich 1989, ISBN 3-411-20907-0 , p. 337.