Protection of family diversity: marriage, civil and de facto unions (cohabitation, joined families); same-sex unions and / or marriage

If spouses live together in one household and the tenant of the apartment dies, the other spouse enters into the contract. The decision concerns the question of whether this law also applies to non-marital partners. The complainant was the owner of an apartment which was let to Ms S. in May 1968. Ms. S had lived there since 1968 with her partner who, after her death in December 1986, demanded that the complainant continue the tenancy with him. The complainant rejected this demand and filed an action for eviction which was successful at first instance. The defendant’s appeal on points of fact and law was successful. The regional court had taken the stance that § 569a.2 sentence 1 of the Civil Code was to be applied analogously to unmarried civil partners. The provision was said to centre on the goal of maintaining the previous geographical focus of the party who had lived with the tenant in the household in order to avoid undue hardships for the party affected. The inclusion of the element “family member” was said to be explained in historical terms on the basis of the fact that unmarried civil partnerships had not yet been a socially relevant element in 1964. 
The complainant claimed a violation of Article 14.1 sentence 1 of the Basic Law. Moreover, she believed that such an interpretation of § 569a of the Civil Code was incompatible with Article 6.1 of the Basic Law.
The FCC held that courts are empowered and obliged to examine what is “justice” under the changed circumstances within the meaning of Article 20.3 of the Basic Law. The method of analogy meets these constitutional requirements. In the specific case, the analogy did not violate the separation of powers either. The view of the regional court that the change in circumstances within society had to be taken into account by expanding the area of application of § 569a.2 sentence 1 of the Civil Code is justifiable. It can invoke amongst other things the fact that an agreement legally made in 1964 between parties to a tenancy agreement to enter into a new tenancy agreement after the death of the tenant with his or her surviving unmarried partner would at that time have been at risk of nullity in accordance with § 138.1 of the Civil Code. This legal consequence could hardly be considered today. Agreement has largely been reached today that under the preconditions of § 549 of the Civil Code the landlord is obliged to tolerate the constant residence of an unmarried partner in the rented apartment. This legal view finds further support by virtue of the fact that the legislature has explicitly accommodated unmarried civil partnerships in various regulatory areas. Therefore, the impugned adjudication did not impermissibly substitute a fundamental decision of the legislature with a judicial one. 
A violation of Article 6.1 of the Basic Law was also not apparent. This fundamental right provision does impose on the legislature an obligation to protect marriage and the family against harm and to promote them by taking suitable measures. This however does not give rise to an obligation to refuse unmarried communities any legal recognition at all and to try everything possible to work towards denying them the necessary financial and other means of functioning. 
The impugned ruling also did not violate Article 14.1 sentence 1 of the Basic Law. The owner of let residential premises is under a considerable obligation to accommodate the interests of those fellow citizens who are unable to purchase residential premises for themselves using their own financial resources, and hence rely on using property belonging to others. In the event of long-term co-utilisation, it is to be assumed that the tenant’s partner had established his or her geographical focus in these premises. The legislature would not have exceeded its regulatory competence (Article 14.1 sentence 2 of the Basic Law) in evaluating these contradictory interests if in cases such as those of the original proceedings it had explicitly afforded a possibility of succession to the civil partner. Therefore, the encroachment on Art. 14.1 sentence 1 of the Basic Law is also justified in these cases. 
The impugned ruling did not exceed the limits of judicial development of the law also does not violate Article 6.1 of the Basic Law or Article 14.1 sentence 1 of the Basic Law. The constitutional complaint is therefore unfounded.