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Germany: New Act Allows Stepchild Adoption in Nonmarital Families

(Apr. 29, 2020) On March 31, 2020, an act that allows stepchild adoption in nonmarital families entered into force in Germany. The act implements a decision of the German Federal Constitutional Court of March 26, 2019, which ruled the exclusion of stepchild adoption in nonmarital families unconstitutional. The decision obligated the legislature to enact new rules by March 31, 2020. In the opinion of the Court, the exclusion infringed article 3, paragraph 1 of the German Basic Law, the country’s constitution, because it unjustifiably discriminated against stepchildren living in nonmarital families as compared to stepchildren living in marital families.

Background

Prior to the adoption of the new law, only a stepparent who was married to the legal parent was able to adopt a stepchild and create joint legal parenthood with his or her spouse. (German Civil Code § 1741, para. 2.) However, if a stepparent in a nonmarital family adopted the stepchild, the relationship to the legal parent was extinguished. As such an outcome was generally not what the couple desired, it de facto excluded stepchild adoption in nonmarital families.

Content of the Law

The act adds a new section 1766a to the German Civil Code. It states that the rules applicable to stepchild adoption for married couples are also applicable to two people who are in a stable relationship and live in a common household. A stable relationship generally exists, among other cases, when the two people have lived together for a minimum of four years or have lived together as parents of a common child with that child in a manner similar to a marriage. It generally does not exist when one of the partners is married to a third person. (§ 1766a, para. 2.) The question of whether a stable relationship exists in other cases must be evaluated on a case-by-case basis, taking into account the best interests of the child. (Explanatory Memorandum, at 14.)

If the person adopting the stepchild of a partner is married to a third person, he/she may only adopt the child by him/herself. The third person must agree to the adoption. (§ 1766a, para. 3.)