Maintenance obligation of the illegitimate father
The maintenance obligation of the illegitimate father was a special provision for maintenance in the BGB until 1970 .
According to the law of the time, the illegitimate child was not legally related in relation to its father ; thus the regulations on maintenance among relatives were not applicable. Instead, § 1708 BGB a. F. a special legal regulation that obliged the father of an illegitimate child to maintain that, in principle, could only be paid in cash.
In contrast to the maintenance between relatives, the maintenance obligation was dependent neither on the need of the child nor on the ability of the father, but it only applied until the child was 16 years old (except for disabled children). If the father died, the father's heirs had to continue to provide maintenance, but could also pay a severance payment in the amount of the compulsory portion that the illegitimate child would be entitled to if it were a legitimate child.
The maintenance claim was basically subject to contractual disposition (similar to the separation maintenance) and could e.g. B. can also be replaced by a one-off severance payment; only a waiver without consideration was fundamentally excluded by the law.
According to the law, the father of an illegitimate child was in principle liable to maintenance before the mother. This indirectly resulted in a legally stipulated division of labor: the mother had to raise and care for the child, the father had to provide maintenance in money. The Federal Constitutional Court ruled that this regulation is unconstitutional if the child does not live in the mother's household, but z. B. is housed in a fully inpatient home due to his disability, since in this case the father is charged with all costs and the mother does not have to pay any maintenance, which is a discrimination against the father of a legitimate child.
The provisions of the illegitimate father's maintenance obligation, which discriminated against the illegitimate child, were ultimately the reason why the Federal Constitutional Court obliged the legislature to eliminate the unequal treatment of illegitimate and legitimate children, which was finally (partially) implemented by the illegitimate law . The reason for this decision was a case in which the father's heirs withdrew the child's maintenance entitlement because he had already received the father's orphan's pension (which the illegitimate child could receive despite the lack of legal relationship).