Why do governments promote marriage?

Family policy

Irene Gerlach

Irene Gerlach is professor of political science at the Evangelical University of Applied Sciences in Bochum and co-director of the research center for family-conscious personnel policy at the Westphalian Wilhelms University in Münster. Her work focuses on the political system of the Federal Republic of Germany, German and international comparative family policy and methods of empirical social research. Her book "Company Family Policy: Contexts, Measurements and Effects" (2012) was published most recently.

Family law regulates various aspects of marriage and the family. This includes tasks within the family, including the parent-child relationship through to equality between spouses. In this way, family law also promotes socially desirable behavior. The expert for family policy research Irene Gerlach describes the various legal bases that are important for marriage and the family, such as the Basic Law or the Civil Code. She also outlines the development and reforms of family law.

Family law has repeatedly undergone a large number of changes that have involved a considerable rebalancing of the relationship between the state, family and family members. (& copy picture-alliance / dpa)

The law lays down rules and expectations so that people can - or must - calculate the consequences of their own actions and those of third parties. This is done through law and in particular through fundamental rights and the Basic Law with regard to the actions of the state and its institutions towards the citizens. On the other hand, law can also serve to generate socially desirable behavior: This is perhaps much more true of the entire area of ​​family law than of any other area of ​​law. In relation to the family, German law encompasses the entire range of instruments for the legal control and regulation of relationships between family members and relationships between families and society - under the umbrella of the Basic Law (GG) as the German constitution. Article 6 (GG) secures the institute guarantee as well as the protection and promotion requirement of the family as a fundamental right. In law, marriage and the family are so-called (legal) institutes.

How marriage and the family come about as legal institutions is regulated comprehensively and in detail in Book Four of the Civil Code (BGB). This also includes, for example, the dissolution of the marriage and who has which tasks and duties, but also rights, towards whom. Same-sex partnerships have also been regulated here since 2001. However, the family and the performance of family responsibilities also play an important role in other areas of law. These include the Part-Time and Temporary Employment Act, which creates the right to part-time work (not only for families), or the Social Security Code (SGB), which in many places helps shape the reality of families' lives. For example in SBG II, where the conditions of the basic security for family members are specified; in SBG III, which differentiates the amount of unemployment benefit for recipients with child (ren) from that for childless, and in SGB VIII, which regulates the framework of day care supplementary to families or youth welfare. The Federal Parental Allowance and Parental Leave Act (BEEG) is also decisive for parents. The Child Promotion Act of 2008, which created the right to a childcare place for under-three-year-olds, also shapes the family reality. The law came into force in August 2013. And finally, the Works Constitution Act in its version since 2001 has also regulated that it is the task of the works councils to ensure the compatibility of work and family.

When assessing the real life of families, the Child and Youth Welfare Act (KJHG), which came into force in 1991, must also be mentioned within the framework of essential conceptual legal reforms. It replaced the Youth Welfare Act and had been prepared over several legislative periods. In contrast to its predecessor, the new KJHG (in Book VIII of the Social Code) takes a preventive approach. It contains a wide range of supportive aids for families to strengthen their parenting power. Accordingly, his intention can also be seen in reducing the state's interference in the parent-child relationship through suitable preventive measures. A systematic development can also be traced back to SGB VIII with regard to family support, according to which the state assumed responsibility for looking after children earlier and earlier.

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Article 6, Basic Law

(1) Marriage and family are under the special protection of the state order.

(2) The care and upbringing of children is the natural right of parents and their primary duty. The state community watches over their activities.

(3) Against the will of the legal guardian, children may only be separated from the family on the basis of a law if the legal guardian fails or if the children threaten to neglect for other reasons.

(4) Every mother has the right to the protection and care of the community.

(5) Legislation shall ensure that illegitimate children have the same conditions for their physical and mental development and their position in society as legitimate children.
The central "family" article in the Basic Law is Article 6. Paragraph 1 of the Article is multidimensional. First of all, the article represents a classic right of defense, that is, it first of all protects the family from outside interference. In addition, it contains an institute or facility guarantee, which means that the state community guarantees to be able to live as a family. Article 6 is to be understood as a value-determining basic norm. In concrete terms, this means that the state undertakes to avoid disturbances and harm to the family by itself and by third parties and, in addition, to promote the family through suitable measures and to prevent discrimination.

Family law and constitution

In their implementation, these guarantees are to be seen in connection with a number of other articles of the Basic Law. In addition to the assurance of the right to free development of the personality in Article 1, paragraph 1 and in Article 2, above all, the general principle of equality in Article 3 is incorporated into the application of the welfare state principle in accordance with Article 20 paragraph 1 and Article 28 Paragraph 1. Article 6 has remained unchanged in its wording since the Basic Law came into force in 1949, although there were discussions about reform proposals, especially as a result of German unification. Article 3 of the Basic Law, on the other hand, was supplemented in 1994 with the addition of an additional sentence in paragraph 2, which since then has read: "Men and women have equal rights. The state promotes the actual implementation of equal rights for women and men and works towards the elimination of existing disadvantages . " This additionally formulated obligation of the state to act is important not least for the real life situation of families.

There is no longer just the classic family, but a variety of communities. It is important that family law also respects this plurality. (& copy Damian Longerich / www.cupitronic.net)

Article 6 (1) provides for the special protection of marriage and the family and thus adopts a narrow concept of the family. The circle of partnerships that (should) be viewed as families is larger today and no longer relates solely to marriage. The Life Partnership Act in 2001 led to extensive changes, including in the BGB. On the one hand, this was a further step on the way to legalization and thus institutionalization of plural, private life organization, on the other hand, state regulatory powers were also significantly expanded. The legislature did not choose the form of the constitutional amendment (Article 6), but regulated the civil partnership in the BGB, since no full equality with marriage was sought. However, due to the case law and in particular the constitutional case law, a gradual approximation to marriage and - with the exception of the adoption in pairs to the family - can be observed.

Protection of families: promotion requirement and prohibition of damage

The protection requirement for the family is not only to be understood as a right of defense against state interference (prohibition of damage), but also as a promotion requirement. The prohibition of harm to the family, which can also be understood as a prohibition of discrimination, was substantiated by a large number of decisions by the Federal Constitutional Court. In contrast, the Federal Constitutional Court initially remained reluctant to specify the funding requirement.

It was based on the assumption that no constitutionally secured entitlement to certain state benefits can be derived from the subsidy requirement and that the state is in particular not obliged to compensate for every burden affecting the family. However, with regard to his concrete interpretation of the funding obligation, a tendency can be proven: namely that the transition between general principles of equality and family support has been "pushed up" and thus the support catalog has in fact been made more and more binding. This applies, for example, to various judgments of the Federal Constitutional Court from the 1990s. It gradually stipulated that both parents and children were entitled to tax allowances. In addition, it was determined which costs for children incurred by parents should be taken into account here. As a consequence, the judgments have meant that since their implementation there have been minimum limits for family support, beyond which the legislature cannot fall back, even if the finances are poor.

The institute's guarantee for marriage and family, on the other hand, is precisely formulated. Both are initially guaranteed by Article 6 as rules of life and specifically defined in other areas of law, for example in the BGB. This also means that the state protects characteristics and structural principles in their existence which, according to the understanding of the Basic Law, make up marriage and the family. Particular mention should be made of the principle of monogamous marriage, the freedom to enter into marriage, the requirement of extreme restraint in the formulation of obstacles to marriage, the fundamental (but not without exception) indissolubility of marriage and the principle of equal rights for spouses.

The Basic Law required changes in family law

The Basic Law shapes the legal framework for marriage and the family, which is also illustrated by a look back at its entry into force (1949). With the legal relationships created by Article 6 and Article 3 of the Basic Law, the legislature was faced with the task of reforming family law regulations. Article 6 (5) of the Basic Law called for the creation of the same conditions for physical and mental development for illegitimate children as for marital and legitimate children in society. But the constitutional mothers and fathers had not set a deadline for this constitutional mandate. And so it was not until a decision of the Federal Constitutional Court in 1969 enforced "the law on the legal status of illegitimate children", which came into force in 1970. With regard to the adaptation of the BGB to the principle of marriage based on the principle of equality in the Basic Law, Article 117 of the Basic Law granted the legislature a deadline of March 31, 1953. However, the deadline passed without any appropriate action being taken. The process of legal reform was only set in motion by a decision of the Federal Constitutional Court in 1953. The result was the "First Equal Rights Act" of 1958. However, husbands and wives still did not have equal rights: The wife was now allowed to pursue her own gainful activity, but only to the extent that this was compatible with her duties in marriage and family (§ 1356). Parental authority was now available to both parents, but in disputed issues the father initially retained the right to "cast the ballot", that is, the father kept the last word, so to speak. This was later declared null and void by the Federal Constitutional Court. The obligation to cooperate in the business as well as the maintenance obligation, which previously existed only for the man, was reformulated into a mutual one. However, the BGB (§ 1360) continued from the assumption that the woman's obligation was usually already fulfilled by running the household.