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Statutory restriction to "double married name" compatible with Basic Law
Press Release No. 47/2009 of 05 May 2009
Judgment of 05 May 2009
1 BvR 1155/03
The regulation under § 1355.4 of the Civil Code (Bürgerliches Gesetzbuch - BGB) provides that when concluding marriage, the spouses should by declaration to the registry office designate a common family name, which will be their married name. For doing so, they can choose between the birth name of the husband or the wife or the name he or she has used so far. If they do not choose a joint married name, each spouse continues to bear his or her name after concluding marriage. If the spouses do choose a married name, the spouse whose name does not become the married name may attach his or her own name before or after the married name. This possibility, however, is excluded or restricted under § 1355.4 sentences 2 and 3 BGB if the spouses already have multiple names: If a spouse's name that already consists of more than one name is designated as the married name, the other spouse may not attach his or her name to the married name. If, however, the name that is not chosen as the married name consists of more than one name, only one of these names may be attached to the married name.
The first complainant uses a double name and has had a law firm in Munich for many years. The second complainant uses only one name, has children from a previous marriage and is a practising dentist. In May 1997, the complainants married without at first designating a married name; for both of them, it is their second marriage. They later on decided that they wanted to designate the first complainant's double name as their married name; the second complainant intended to attach her name before the married name. This was denied by the Munich Registry Office. An application lodged to this effect before the Local Court (Amtsgericht), an appeal and a further appeal lodged before the Bavarian Highest Regional Court (Bayerisches Oberstes Landesgericht - BayOblG) were unsuccessful.
The constitutional complaints lodged by the complainants was rejected as unfounded by the First Senate of the Federal Constitutional Court on the basis of the oral hearing held on 17 February 2009 (see German press release no. 108/2008 of 19 December 2008). The First Senate decided that the provision under § 1355.4 sentence 2 BGB, pursuant to which a spouse whose name has not been designated as their married name by the spouses may not attach his or her name to the married name if the married name already consists of more than one name, is compatible with the Basic Law, in particular with the right of personality (Article 2.1 in conjunction with Article 1.1 GG). Also the protection of marriage (Article 6.1 GG), occupational freedom (Article 12.1 GG) and the principle of equality (Article 3.1 GG) are not impaired by this legal regulation. The decision was reached by a majority of 5 votes to 3.
In essence, the decision is based on the following considerations:
§ 1355.4 sentence 2 BGB pursues a legitimate legislative objective. When designing its concept of the law on family names, the legislature gave the name various functions. On the one hand, name-bearers are intended to find and express themselves in their names. On the other hand, the function of the law on names is to clearly allocate the name-bearer to a family, to retain a name's power of identification and to ensure such power also in the sequence of generations. To achieve this, the legislature has enacted legal regulations that are intended to prevent, wherever possible, the formation of double and multiple names. § 1355.4 sentence 2 BGB integrates into this concept.
The provision follows the concern of forming names which are on the one hand practicable in legal and business relations, and will on the other hand not lead to name chains in future generations. The provision prevents a name-bearer from using a name that may consist of up to four names in cases in which the spouses have used genuine double names so far. At the same time, the legislature thus rules out that children can receive a multiple name which consists of three names.
It is true that the legislature has meanwhile opened the possibility, through §§ 1617.1 and 1617a BGB, of designating as the birth name of a child the double name of one parent which has been composed from a married name used before and an attached name. In this context, the question arises why the legislature permits a double name of one parent which consists of a previous married name and an attached name being transferred to a child but prohibits the formation of a double name from the spouses' names as their married name or the formation of a double name from the parents' names as their child's birth name. Even though with these regulations, the legislature does not consistently pursue its aim of preventing even double names especially as birth names for children, § 1355.4 sentence 2 BGB at any rate serves the legitimate purpose of excluding the emergence of names used that consist of more than two names, thus also preventing that they become children's birth names. Insofar the provision is also suitable and necessary for containing the formation of name chains, as has been the wish of the legislature.
The encroachment by § 1355.4 sentence 2 BGB on the spouse's right to bear a name, which is protected by Article 2.1 in conjunction with Article 1.1 GG, is proportionate. Admittedly, reasons of practicability are not sufficient for justifying the regulation. However, the legislative concern has indeed been sufficient for generally excluding multiple names that go beyond double names in order to preserve the name's identity-creating function. Even though other possibilities of drafting were possible, it is for the legislature to decide whether it prevents long name chains already where the point at issue is the possibility for a spouse to use his or her previous name in addition to the married double name chosen by both spouses, or if it performs the reduction of names to at most a double name only when the names used by the parents are transferred to their children.
Finally, the restriction under § 1355.4 sentence 2 BGB is also reasonable because in the context of its concept for the law on names, the legislature has left the spouses many possibilities of variation as regards the selection of the names which they will use after concluding marriage, even though it excludes the possibility of attaching a name to a chosen married double name; these possibilities also permit the spouses to fulfil their wish of expressing their own identity. In particular if one spouse's double name is chosen as the married name, the possibility exists for the other spouse to continue using as a firm name the name that he or she has used so far in business relations (§ 21 of the Commercial Code (Handelsgesetzbuch - HGB)) and to bear the name together with his or her married name. The German law on names has no rigid regulations on using one's name; according to the German law on names, it is sufficient if the signature of the name makes it possible to unambiguously identify the person. Merely vis-à-vis public authorities, the legally acknowledged name must be indicated.
§ 1355.4 sentence 2 BGB also does not violate Article 6.1 GG by making it impossible for the spouse to bear a married name. The provision does not place the spouses under an obligation to choose a uniform married name; it, however, does support the wish of spouses to be able to express their unity in a joint married name. The legislature has accommodated this concern by opening the spouses the possibility of designating one of the names they have used so far as their married name.
The regulation also does not infringe Article 12.1 GG. § 1355.4 sentence 2 BGB shows no tendency to regulate an occupation or a rofession. If the choice of a married name results in the change of the name of one of the spouses, a change the spouse himself or herself has wished, with the consequence that the name he or she has used so far is cancelled, this is not an impairment of the freedom of practicing an occupation or a profession that is equivalent to an encroachment. For the spouse affected is free not to designate a married name or, if a married double name is chosen, to continue acting under his or her previous name at any rate as a professional designation.
Finally, also Article 3.1 GG has not been violated. Apart from the fact that the circumstances which exist here are unequal, which accordingly makes it possible for the legislature to treat them unequally, the legislative objective of avoiding name chains is a sufficient reason which justifies the unequal treatment.