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

At the time of the application, § 3.3 sentence 1 BKGG  stipulated that if the spouses, who were not permanently separated, meet the eligibility requirements for a child, the child benefit was granted to the person whom they designated as the beneficiary. As long as there was no designation, child benefits were granted to the person who predominantly maintained the child or to the parent who had sole care of the child. Parents who were not married or lived separated could not make a determination.
Pursuant to § 10.1 BKGG, a higher number of children resulted in a disproportionate increase in child benefits. In this context, all children of the claimant were counted as so-called “count children” when calculating the child's number in order. This was done even if another entitled person received child benefit for such a child on a priority basis. For this reason, it was advantageous for parents to designate the parent who had the most “count children” as the beneficiary. 
However, this led to unequal treatment between cohabiting spouses and their families, on the one hand, and other parents and their families, on the other hand, with regard to the possibility of obtaining an advantage in the receipt of child benefits on the basis of the “count children”. 
The revised version was intended to eliminate the possibility of making a determination with respect to who is entitled to child benefits for parents who are not married to each other or married but living separately, but to maintain it for parents who are married to each other and living together.
The FCC held that § 3.3 sentence 1 BKGG was not compatible with Article 3.1 of the Basic Law.  § 3.3BKGG leaded to unequal treatment between cohabiting spouses and their families on the one hand and other parents and their families on the other with regard to the possibility of obtaining a so-called counted child advantage when receiving child benefit.In the absence of suitable reasons which could justify a different treatment of the groups of parents, this unequal treatment was not objectively justified.