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

The constitutional complaint concerned the question whether it is constitutional to make the possibility of a stepchild adoption leading to joint parenthood dependent on the stepparent being married to the parent. The first complainant was the natural mother of two children (second and third complainants). The natural father, who was married to the mother, died in 2006. Since 2007, the first complainant has lived in a non-marital partnership with the fourth complainant. They had refrained from marrying because the first complainant received a widow's pension, which she considered an essential part of her livelihood and which she would lose by remarrying. Both had a common son born in 2009. The local court rejected the application to declare the second and third complainants as joint children. The constitutional complaint is directed against this rejection.
The FCC held that the current legal situation initially violated neither the stepparent nor the mother's fundamental parental right under Article 6.2 of the Basic Law. There was also no violation of the right to state guarantee of parental care and upbringing to which the children are entitled under Article 2.1 in conjunction with Article 6.2 of the Basic Law. Furthermore, the fundamental family right of Article 6.1 of the Basic Law was not violated.
However, there was a violation of Article 3 I of the Basic Law. It lead to unequal treatment of children in non-marital stepchildren's families compared with children in marital stepchildren's families. They were denied any possibility of being adopted by the stepparent while maintaining the relationship to the legal parent and thus at the same time becoming joint children of both parents. This disadvantage was not justified. The purpose pursued by the exclusion of preventing children from growing up under unfavorable family conditions is legitimate, but it could not be achieved because the child often already lives in a family with the parent and the stepparent. Also legitimate is the purpose of allowing stepchild adoption only in unions that promise stability, but complete exclusion was not an appropriate remedy. Marital status can be used as an indicator of stability in a constitutionally permissible way, but the regulation is not suitable to cover alternatively stable non-marital stepchild families. Nor could the complete exclusion be justified by the legislature's powers of simplification and typification. There is no evidence to suggest that the nonmarital relationship was typically less stable. For the children, the marital status determined whether they can maintain their social parent as their legal parent. This hardship can be avoided by examining the best interests of the child in each individual case and considering other stability indicators in addition to marital status.