What is your definition of family
Parental Care - Part 1: Legal Definition of Family
No other relationship reflects the construction of the family and its changes as much as the regulation of parental custody in family law. Therefore, a few basic considerations should be made at the beginning:
Family and law
The relationship between man and woman, but also between parents and children, is a central cultural and socio-political issue and has changed fundamentally over the centuries, especially in the last three decades.
At the time the BGB came into force in 1900 - in the Wilhelmine Empire - the husband and father were almost unrestricted rulers in marriage and family, while wife and children had almost no say in the matter. For example, the man could forbid the woman to work and had parental control over the children. It was not until the 1950s that German legislators began to gradually harmonize the rights of men and women and legitimate and illegitimate children.
The following experiences are currently shaping the discourse on the construction of the family:
- Fundamental changes in the partnership relationship against the background of the demand for a work-life balance
- Dissolution of traditional household forms - the emergence of new forms of household and living communities
- Increase in the number of divorces
- Increasing number of single parents
- Decline in marriages
- Increase in unmarried partnerships
- Falling birth rates
On the one hand, the family is the most private space for most people, in which the state should not interfere: on the other hand, of course, the family is not a purely private matter, but one of the foundations of the state and society, which should promote and stabilize family policy and family law.
Family law and the Basic Law
The family is under the special protection of the state. This is anchored in the constitution of the federal government, the Basic Law (GG) in Art. 6 GG, and in the constitutions of the federal states, e.g. in the Bavarian Constitution (BV) in Art. 124 BV.
The Basic Law essentially contains five central provisions that are important for families:
- Art 6 Abs. 1 GG: marriage and family (special protection by the state order)
- Article 3, Paragraph 1, Sentence 1 of the Basic Law: Equal rights for men and women
- Art. 6 Para. 2: Care and upbringing of children (as a right and duty of the parents - state guardianship)
- Art. 6 para. 4 GG: Maternity protection (right to protection and care)
- Article 6 (5) of the Basic Law: Equal rights for legitimate and illegitimate children
Art. 6 para. 1 GG is a classic one Liberty law in the sense of the defense rights fought for in the 18th and 19th centuries against the - at that time still strongly authoritarian - state. According to this, the private sphere of the family was and is fundamentally protected from external coercion by the state and the state is obliged to respect and promote this. The family is also protected as a special order of life (institution) and can rely on a so-called Institute guarantee appointed. Article 6 (1) of the Basic Law also contains a special principle of equality: This prohibits family as a way of life from being placed in a worse position than other forms of life and educationProhibition of Discrimination). Finally, Article 6.1 of the Basic Law contains a binding one Value decision for the entire area of public and private law: marriage and the family must not be harmed or impaired as a way of life (No impairment), but should rather be promoted through suitable measures (Funding requirement). However, no constitutional right to a direct, concrete service can be derived from this.
The (tension) relationship between parental rights and the state guardianship - the central commission for child and youth welfare - is also of fundamental practical importance.
The family encroachment of the Basic Law
The concept of the family in the Basic Law is to be understood openly. Undoubtedly, the relationship between parents and the children under their care is primarily meant. The Federal Constitutional Court (BVerfG) understands family to be the community existing between parents and children, including the community with stepchildren, adoptive children and foster children. The relationship between the mother and the father and their illegitimate child is also included. The new jurisprudence of the BVerfG focuses heavily on the social fact: “Art. 6 I GG protects the family as a community of parents and children. It is irrelevant whether the children are descended from their parents and whether they were born in wedlock or out of wedlock. Family is the actual living and upbringing community between children and parents who are responsible for this. "That is why the biological, legally not (yet) recognized father forms a family with the child within the meaning of Art. 6 I GG, if he actually does Bears responsibility for his child and this creates a social relationship between him and the child.
The German Civil Code (BGB) does not contain any definition of the family. In its 4th book (Family Law) it does not regulate the family as a community, but rather the rights and duties and thus the legal relationships of the individual persons connected by marriage and kinship (e.g. the spouses among themselves; the parents to the children). Although part of private law, family law is largely mandatory law; H. those affected can only freely regulate their legal relationships to the extent that the law expressly allows it. For example, spouses can make maintenance agreements for the period of separation or after the divorce that deviates from the statutory provisions.
European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
In addition to the Basic Law, the ECHR and its interpretation by the European Court of Human Rights are of considerable importance for the development of family law. The convention is an international treaty that is ratified by the Federal Republic and directly applicable as a domestic law. Article 8 of the Convention, according to which everyone has the right to respect for their private and family life, has acquired particular importance. National sovereigns may only intervene in the exercise of this right under strictly defined conditions. The prohibition of discrimination in Article 14 of the Convention, which fundamentally excludes unequal treatment on grounds of sex, must also be observed. The ECHR has stated that the right to respect for family life does not fundamentally make any difference between "legitimate" and "illegitimate" families.
First version: Prof. Dr. Hans Schleicher, Munich
Revision and update: Prof. Dr. Susanne Nothhracht, Professor of Law at the Catholic Foundation University in Munich.
More articles by Prof. Dr. Susanne Nothhracht in our family handbook:
created on April 22, 2002, last changed on October 31, 2016
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