Bundesverfassungsgericht

You are here:

A right of the apparent father to information concerning sexual relations of the mother requires a specific statutory basis

Press Release No. 16/2015 of 18 March 2015

Order of 24 February 2015
1 BvR 472/14

A court order requiring the mother to provide information on sexual relations with certain persons in order to facilitate enforcement of a claim by the so-called apparent father to compensation for child support payments constitutes a severe interference with the mother’s right of personality. Such an order requires an adequately specific statutory basis, which does not exist. Such was the decision of the First Senate of the Federal Constitutional Court in an order published today. The Senate reversed an order of the Higher Regional Court (Oberlandesgericht) of Schleswig-Holstein, which in the initial proceedings had required the complainant to provide information, and remanded the case for a new decision.

Facts of the Case and Procedural History:

1. If paternity is successfully challenged, support claims of the child against the former legal father (the so-called apparent father) are retroactively extinguished. To the extent that the apparent father has already made child support payments, the child’s support claims against the biological father are transferred to the apparent father. There is no statutory provision on rights of the apparent father to demand information from the mother on who might be the biological father. In a series of recent decisions, the Federal Court of Justice (Bundesgerichtshof) acknowledged and further delineated such a right, which it based on the principle of bona fide in § 242 of the Civil Code (Bürgerliches Gesetzbuch – BGB).

2. The complainant, twenty years old at the time, was in a relationship with the applicant of the initial proceedings and became pregnant. After the complainant and the applicant had married, the complainant’s daughter was born in wedlock in early October 1991, making the applicant the legal father of the child. In 1994, the complainant informed the applicant of the possibility that he might not be the child’s biological father. The complainant and the applicant were divorced in 1995. The applicant applied for sole custody of the daughter. In 2010, the applicant successfully challenged paternity. In October 2012, he requested the complainant to inform him of who might be the biological father of her daughter, which the complainant refused to do. The Local Court (Amtsgericht) and the Higher Regional Court required the complainant to provide the information; the constitutional complaint challenges these decisions.

Key Considerations of the Senate:

1. The challenged decisions violate the complainant’s general right of personality since they fail to recognise the scope of this fundamental right. By encompassing the private and intimate spheres, the general right of personality also protects the right to decide oneself if and how one discloses information on one’s intimate sphere and on one’s sex life. This includes not having to disclose sexual relations with a specific partner.

The courts correctly opposed this right to the apparent father’s interest in enforcing his claim to compensation under statutory law. Even though the interest in deciding oneself if and to whom one wishes to disclose information on one’s sex life carries large constitutional weight, the mother’s interest in secrecy may in certain cases – e.g. because of her prior conduct – be less worthy of protection than the apparent father’s interest in financial compensation. It is, therefore, not a priori impossible under constitutional law to force the mother to provide the apparent father with information on the identity of the father to facilitate enforcement of his claim to compensation.

In the case at hand, however, the courts incorrectly judged the importance of the complainant’s right to decide herself if and how she wishes to disclose information on her intimate sphere and her sex life. The Local Court disregarded the complainant’s general right of personality simply because she had not informed the applicant that he might not be the biological father. The Higher Regional Court, on the other hand, found that the complainant’s general right of personality was affected, but did not further balance it with the financial interests of the applicant. According to the court, the successful paternity challenge had shown that the complainant had had sexual intercourse with another man during the period of conception; the “only” remaining question was who might be the father. In pursuing this line of argument, the court failed to recognise that the mother’s constitutionally protected intimate sphere particularly  encompasses the information about her sex partner or partners . This right was not exhausted by disclosing that she had further sexual relations.

2. Irrespective of the circumstances of the case at hand, a court ruling ordering the mother to disclose information on the identity of the presumptive father of the child to facilitate enforcement of the apparent father’s claim to compensation transcends the constitutional boundaries of judicial development of the law, since such a development has no adequately specific basis in statutory law. Therefore, the complainant is violated in her fundamental rights (Art. 2 sec. 1 in conjunction with Art. 20 sec. 3 of the Basic Law [Grundgesetz – GG]).

a) In principle, there are no constitutional objections to courts basing rights to information within special relationships on the blanket clause of § 242 BGB. From a constitutional law viewpoint, the blanket clauses of civil law enable the civil law courts to enforce the protection provided by the fundamental rights and thereby to support the legislature in fulfilling its mission of enforcing the fundamental rights; in doing so, the civil law courts enforce the fundamental rights to an extent the legislature alone would not be able to achieve considering the obvious diversity of possible cases.

However, there are constitutional limits to judicial development of the law; such limits may derive from the fundamental rights. If the solution chosen by the court by way of judicial development of the law serves to enforce the Constitution, and in particular constitutional rights of individuals, these limitations are less narrow, since such a development implements superior constitutional requirements that also bind the legislature. Conversely, the limits of judicial development of the law are narrower if the solution chosen negatively affects an individual’s legal position; the more important the affected legal position is under constitutional law, the more the court must focus on applying existing requirements of statutory law.

b) The limits the fundamental rights impose on judicial development of the law are narrower in these cases. The obligation to provide the information sought severely interferes with the complainant’s fundamental rights. In the case at hand, this interference is opposed merely by the apparent father’s interest in facilitating enforcement of his claim to compensation under statutory law. There are no constitutional reasons for correcting the fact that the legislature – by not pairing it with a right to information – designed the claim to compensation in a manner that makes it difficult to enforce. It lies within the legislature’s margin of appreciation to decide on how to balance the mother’s interest in protecting the intimate data of her sex life with the apparent father’s interest in financial compensation.

c) Accordingly, in cases like the one at hand the courts may not base a right to information merely on the blanket clause of § 242 BGB. Court rulings ordering the mother to disclose information on the partner or the partners of sexual relations rather require specific statutory points of departure that show that the mother is required to provide information of the type in question. In the case at hand, there are no such points of departure. § 1605 BGB requires relatives to furnish information on their income and their assets if need be. However, there is no obligation on the part of the mother to provide information on sexual relations with a partner, even though it is obvious that enforcement of claims to compensation requires knowledge of the biological father and it is further obvious that the mother will often be the only person who is able to provide indications as to who the biological father might be. The necessary point of departure cannot be seen in the legal claim in § 1607 sec. 3 BGB. That provision merely awards a material right without providing for its enforcement.

Reinforcing the apparent father’s claim to compensation would require action on the part of the legislature. The legislature, however, would have to take the mother’s opposing general right of personality into account, which carries great weight in these cases.