Reform of family law: planned changes to parentage and filiation law

Extensive and diverse reforms to family law were already announced in the coalition agreement between the SPD, Bündnis 90/Die Grünen and the FDP. These reform plans are now being specified in greater detail with regard to parentage and filiation law - Federal Minister of Justice Dr. Marco Buschmann presented two key issues papers in mid-January that contain concrete proposals for modernising family law.

1. Reform of parentage law

Parentage law, which determines who the legal parents of a child are, is being adapted to modern family constellations and the planned reform is strengthening the rights of the biological father.

1.1 Adaptation to alternative family models

The current rule that the woman who gives birth to a child is the child's legal mother is remaining in place. The two-parent principle is also being retained, i.e. the principle that a child can only have two legal parents.

In future, however, it is to be possible for a second woman who did not give birth to the child to also become the mother without having to adopt the child. The woman who is married to the biological mother at the time of birth or who acknowledges maternity will then also become the legal mother. Parentage law is not introducing the paternity of two men, however.

Besides the existing options for obtaining legal parenthood, the reform plans to introduce the possibility of a publicly notarised parenthood agreement: This enables a binding parent-child allocation even before a child is conceived and thus provides for constellations of private sperm donation - the parties involved (birth mother, biological father of the child and the person who is to become the second (legal) parent) can thus determine with legal certainty who is to become the second parent alongside the birth mother even prior to conception. The agreement takes precedence over other allocation criteria (marriage, acknowledgement, judicial determination) and can no longer be revoked, cancelled or amended after conception.

1.2 Legal position of the biological father

In certain constellations, the current provisions of parentage law can make it very difficult or even impossible for the biological father to obtain legal paternity. The reform aims to improve the legal position of the biological father:

In future, pending proceedings to establish paternity in court will create a blocking effect: If the biological father conducts court proceedings to establish paternity, the simultaneous acknowledgement of paternity by another man during these proceedings is to be ruled out. This is intended to prevent paternity being acknowledged in agreement with the mother for the sole purpose of thwarting the judicial determination of the biological father.

A challenge to an existing legal paternity is currently often unsuccessful due to the child's social-familial relationship with the legal father, which currently precludes a challenge. The relevance of this regulation is clearly illustrated by the proceedings currently pending before the Federal Constitutional Court [Bundesverfassungsgericht] (BVerfG, Case 1 BvR 2017/21), in which the biological father, who unsuccessfully attempted to contest the legal paternity but failed due to an existing social-familial relationship, pleads a violation of Art. 6 (2) of the German Constitution [Grundgesetz, GG] (parental rights).

In future, a contestation will also be possible in such a relationship and a decision is to be reached on the contestation as part of a comprehensive weighing of interests instead.

In addition, if the biological mother is already married, an acknowledgement ofpaternity by a man other than the spouse willbe permissible in future, if the spouse agrees. If the parties agree, it should therefore no longer be necessary to contest the legal paternity or to conduct divorce proceedings.

2. Reform of filiation law 

The proposed reform of filiation law, which regulates parental custody and access rights in particular, is characterised by its approach of giving parents far-reaching arrangement options and thus flexible solutions for their individual family constellation.

2.1 Flexible arrangements in relation to custody and access rights

If a parenting agreement has been reached, this should also entail a custody arrangement. In future, parents should also be able to transfer custody rights to each other by agreement and be given the option of granting up to two other people (e.g. new partners) custody rights for everyday matters (so-called "minor custody rights"). The current provision of Section 1687b of the German Civil Code [Bürgerliches Gesetzbuch, BGB], which only provides for such a possibility for the spouse of the parent with sole custody, is thus being extended.

Agreements should also cover access rights: parents are to be able to make arrangements regarding the care of the child subject to immediate enforceability by way of notarised agreement. A further option is the ability to grant third parties access rights (not enforceable, however).

Until now, the law has stipulated a family court procedure for the transfer of parental custody or for enforceable regulations on access rights. The planned reform would therefore simplify the current procedure and expressly standardise the legally binding nature of parental agreements. In order to rule out any risk to the child's welfare, a prior consultation with the youth welfare office will be required.

The rights of the children concerned are also going to be strengthened - the right of access is to be extended to other caregivers / family members and, from the age of 14, children are to have rights to participate in the decision with regard to custody and access rights.

2.2 Legal anchoring of the "alternating model"

Another important innovation is the legal clarification that the family court can order alternating care by both parents. Although such an order is already possible, it has not yet been enshrined in law. In addition, it will be possible for one parent to be able to decide alone on matters of daily life, despite existing joint custody rights, if the child is currently staying with this parent.

2.3 Changes in adoption law

There is also an important change in adoption law: The requirements for adoption are being lowered by making the option of joint adoption available to unmarried couples in future. Married people, on the other hand, will be able to adopt a child alone in future.

3. Outlook

The flexible structuring options with regard to custody and access rights are likely to be of particular relevance for advisory services. Of course, the exact form the law will take remains to be seen, but agreements on custody and access rights could also become part of marriage or partnership agreements and, if necessary, precautionary arrangements for possible separations could also already become feasible.

The intention is to present a draft bill in the first half of 2024. This will be followed by consultations within the federal government, including comments from the federal states and the public. Only then can the legislative process begin. It will therefore be some time before the final regulation is passed.

Initial reactions from experts have been mixed - although the potential of the proposed reform was recognised in principle, it was criticised that there are still gaps in the protection, for example for the biological father in the recognition of paternity. 

An eye also needs to be kept on the other reform plans in the area of family law: in addition to the innovations in parentage and filiation law, the introduction of a new legal institution of a community of responsibility has been announced, which aims to enable and regulate the assumption of responsibility beyond marriage and partnership.

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