Order of 24 Oktober 2024 - 1 BvL 10/20
In an order published today, the First Senate of the Federal Constitutional Court held that a statutory provision according to which a person cannot keep their unchanged surname following adult adoption is compatible with the Basic Law (Grundgesetz – GG).
The statutory provisions regarding the law on names prescribe as a basic principle that in cases where an adult is legally recognised as the child of another person (adult adoption), the adult adoptee receives the family name of the adopting person as a birth name as a consequence of the adoption. This may mean that the family name of the adoptee changes and their former family name can be kept only as part of a double-barrelled name. Although this constitutes an interference with the adoptee’s right to personality, it is compatible with the Basic Law.
This decision was taken with 5:3 votes. Justices Ott, Eifert and Meßling filed a dissenting opinion.
Facts of the case:
These referral proceedings concern the law on names in cases where an adult is legally recognised as the child of another person (adult adoption). The legal recognition as a child (adoption) establishes a parent-child relationship in a legal sense; an adult person can also be legally recognised as a child. In cases of adult adoption with so-called limited effects (Volljährigenadoption mit schwachen Wirkungen), as in the referred case, the adoption does not legally sever the familial relationships of the adoptee with their original relatives. Rather, these relationships remain intact. In addition, the adult adoptee becomes the legal child of the adopting person.
The effects on a person’s name that apply in cases of adult adoption are essentially the same as in cases of the adoption of a minor. In principle, the adoptee is given the family name of the adopting person as their birth name. If the adoptee is married but does not share a family name with their spouse (married name), both the birth name and the family name of the adoptee change as a result of the adult adoption; the family name of the adopting person becomes their family name. On the application of the adopting person and with the consent of the adoptee, the competent court may order that the former family name of the adoptee is placed in front or added after their new family name, thus forming a double-barrelled name.
In the initial proceedings, the adopting person (who is widowed) and the person to be adopted (who is married) have applied to the competent family court for adoption without the effects of an adoption of a minor. From 1985 onwards, the adopting person, who does not have any children of her own, was the life partner of the adoptee’s father who has since died. The adoptee was born in 1964 and got married in 1994. The spouses did not choose a married name and each kept their birth name. Four children were born from the marriage. All children were given the (former) birth name of the adoptee as their family name.
The family court declared the adoption and ordered the former family name of the adoptee to be placed in front of her new family name. It rejected the application to keep the adoptee’s former birth name as her sole family name. The Federal Court of Justice, as the court of last instance in the initial proceedings, suspended the proceedings and referred to the Federal Constitutional Court the question whether the statutory provision under § 1767(2) first sentence and § 1757 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), according to which, in cases of adult adoption with limited effects, an adoptee who, prior to adoption, used their birth name as their family name – but not as their married name –cannot continue to use their birth name as their sole family name even if special circumstances exist, is compatible with the general right of personality under Art.2(1) in conjunction with Art. 1(1) of the Basic Law. The Federal Court of Justice considers the provisions to be unconstitutional.
Key considerations of the Senate:
Taking into account the exception provided for in § 1757(3) first sentence no. 2 of the Civil Code, § 1767(2) first sentence in conjunction with § 1757(1) first sentence of the Civil Code is compatible with the Basic Law. The name change directly effected by these provisions in cases of adult adoption does interfere with the general right of personality of the adult adoptee guaranteed by Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. However, this interference is justified under constitutional law.
The referred provisions interfere with the general right of personality at least in cases where adult married persons used their birth name as their family name but not as a married name prior to the adoption. However, this interference is still justified under constitutional law.
1. The referred provisions seek to give visibility to the new parent-child relationship established by the adoption. In particular, this follows from the provisions directly applicable to the adoption of minors on the effect of the adoption on the adoptee’s name and the underlying reasoning. These can be drawn upon to determine the objective intent of the legislator, because adult adoption was regulated through extensive reference to the law on the adoption of minors, and also because the legislator does not provide any explicit considerations as to why, even in cases of adult adoption with limited effects, the adoptee’s name should always be changed into the name of the person adopting them. Given the objective intent of the legislator, it appears likely that the purpose of these provisions is to give visibility to the new parent-child relationship established by the adoption. For this, the legislator may rely on the principle of the unity of the family in the joint name expressed through Art. 6(1) of the Basic Law. This purpose is therefore legitimate under constitutional law.
2. In light of the possibility of creating a double-barrelled name as provided for in § 1757(3) first sentence no. 2 of the Civil Code, the interference with the general right of personality caused by the referred provisions in situations such as in the case at hand is still appropriate under constitutional law. Under the currently applicable law, the legislator, without unduly restricting the affected individuals’ right to their name, may continue to rely on the publicity of the newly established parent-child relationship as a sufficiently significant reason for the interference with fundamental rights caused by the obligatory name change. Consequently, the provisions also meet the requirement of a fair balancing of the affected individuals’ interests against the public interests pursued – a requirement that is introduced by Art. 8(1) of the European Convention on Human Rights and which must be considered in the interpretation of Art. 2(1) in conjunction with Art. 1(1) of the Basic Law with regard to an individual’s right to their name.
a) The obligatory change in birth and family name as a consequence of the adoption prescribed by the referred provisions in situations such as in the case at hand amounts to considerable interference with the general right of personality of the adult adoptee. The right to one’s name is afforded great importance in the case-law of the Federal Constitutional Court. Above all, this follows from the significance of a person’s name for their personality and their perception by society. A name is significant both for the formation of a person’s identity and the expression of that identity in relation to others. A name, as an expression of one’s identity and individuality, cannot be exchanged at will. It is part of the life story of an individual, which forms a coherent whole under that name. This importance of an individual’s name – including their family name – as an expression of identity and individuality regularly forms the basis of their interest in keeping a once given name. The weight of this interest in permanence increases with the length of time for which the name has already been used. The increasing importance of name continuity and thus the interest in the unchanged use of the former (family) name since the 1976 reform of adoption law through the Adoption Act (Adoptionsgesetz – AdG) is also illustrated by legislative decisions outside of the law on names with regard to children. In 1993, the Act on the Regulation of the Law on Family Names (Gesetz zur Neuordnung des Familiennamensrechts) gave married couples the option not to choose a married name for the first time. Although the explanatory memorandum to the government’s draft of this law stated that it intended to stand by the legislative goal of unity of the family in the joint name, this goal was not intended to be obligatory, as the sole alternative option of putting the former family name before the married name to form a double-barrelled name was frequently considered unsatisfactory. In situations such as in the case at hand, the considerable interference with the right to one’s name is caused in particular by the fact that there is a mandatory change to the family name that the adoptee has used prior to the adoption. This carries particular weight in cases of adult adoption with limited effects, as the adoptee will usually have used the name in question for a considerable amount of time and the familial relationships to the original family remain intact.
b) In regulating the law on family names, the legislator is free to prescribe considerable weight to the goal of the referred provisions: to give visibility to the newly established parent-child relationship through a shared birth name. It cannot be assumed that the legislator no longer considers the principle of unity of the family in the joint name to be significant in any area of law other than adoption. Rather, the adherence to the assigning function of the family name also becomes apparent in other provisions, first and foremost in the necessity to establish a link between the name of a child and the name of at least one parent in § 1616 of the Civil Code. This is further emphasised by the possibility to assign to a child the new married name as their family name after one biological parent has re-married (Einbenennung). Especially the key principle relating to the name of a child established in § 1616 of the Civil Code indicates the goal of the legislator to bind the family name of the child and the shared married name of the parents together as closely as possible. The purpose of the provision in light of the objective intent of the legislator, namely to make the newly established familial relationship between the adopting person and the adoptee visible, cannot carry the same weight in case of an adult adoption with limited effects as in cases of an adoption of a minor or an adult adoption with the effects of an adoption of a minor. In such cases, where a new familial relationship is established between the adopting person and the adoptee, whilst the legal ties to the original family remain intact, the public interest in the external visibility of the new familial relationship is less important than in cases of the adoption of a minor, which intends to achieve a complete integration into the new family.
c) The provisions on the effects of an adult adoption with limited effects on an individual’s name relevant here create a balance between the right of the adoptee to their own name and the public interest of the visibility of the newly established parent-child relationship in accordance with the principle of unity of the family in the joint name (assigning function of the name) that is still appropriate. However, this requires the interpretation and application of the option to create a double-barrelled name established in § 1757(3) first sentence no. 2 of the Civil Code in such a way that takes into account the fact that an individual’s right to their own name as a manifestation of the general right of personality becomes increasingly important the longer the former family name has been used.
The interference with the general right of personality in its manifestation as an individual’s right to their own name caused by the referred provisions carries considerable weight in situations such as in the case at hand, where a change of name occurs due to individual circumstances relating to civil status and name. It is precisely for cases in which the referred provisions are applied in this way that the legislator has created the possibility to continue using the former family name as part of a double-barrelled name laid down in § 1757(3) first sentence no. 2 of the Civil Code. In this way, the interest of name continuity of the adoptee, protected by an individual’s right to their name, is accounted for. As a result, the importance of an individual’s right to their name, which increases with the length of time for which the former name has already been used, must affect the interpretation and application of that provision. Therefore, for constitutional reasons, the requirement that a double-barrelled name must be “necessary for grave reasons for the best interests of the child” in § 1757(3) first sentence no. 2 of the Civil Code must be interpreted as setting a low threshold. Previous case-law on this issue has complied with this standard by accepting almost any understandable interest in the continuation of the former family name as a grave reason in cases of adult adoptees. Because the Constitution requires such a broad interpretation, leading, in effect, to the prerequisites of being able to continue using the former family name as part of a double-barrelled name being easily met, as well as due to the fact that affected individuals, at least in the private context, generally remain free to be known only by their former family name, no situation comes to mind in which the application of the referred provision would create extreme and unacceptable hardship. A balance of interests which satisfies the constitutional requirement of appropriateness can therefore be achieved without requiring a provision that would allow an adult adoptee to keep only their former family name if special circumstances exist.
Relevant interests of third parties that may be affected by the application of the referred provisions of the law on names in situations such as in the case at hand also do not call into question the appropriateness of this balance of interests. In case of married adult adoptees affected by these provisions, the legislator has taken sufficient account of the interest of the adoptee’s spouse’s right to their name. If a married couple did not choose a married name, an adoptee’s spouse’s right to their name protected by Art. 2(1) in conjunction with Art. 1(1) or Art. 6(1) of the Basic Law is not affected by the change in name of the adult adoptee. The spouse’s own family name is not changed and the couple’s decision not to take a married name amounts to a free and active choice not to make their marriage visible externally through a change in name. The fact that the changed family name of the adoptee may alter the view other people have on the marriage and family in practice is a consequence of the decisions made by the spouses. Aside from this, the change in family name of the adoptee may be avoided if the spouses choose a married name later during the marriage but before the adoption and the adoptee’s spouse does not accept the name change effected by the adoption.
In situations such as in the case at hand, where the adult adoptee has children, the referred provisions, in combination with the specificities of the law on names with regard to children, also meet the requirements of an appropriate balance of the relevant interests. If the children are five years of age or older, the adoptee’s change in name only affects their children if they choose to accept the name change. As the family name is of limited relevance with regard to the identity and identification of an individual below the age of five, the legislator’s assessment that this name change interferes with their general right of personality only in a limited way is unobjectionable. In cases where the family of the adult adoptee includes children below and above this age threshold, the unity of the family as expressed by the shared family name is affected. However, this unity of the family name can be preserved if the older children choose to opt into the change of family name.
Dissenting opinion of Justices Ott, Eifert and Meßling
We cannot concur with the Senate majority’s view with regard to both reasoning and outcome. In our view, it is incompatible with the general right of personality (Art.2(1) in conjunction with Art. 1(1) of the Basic Law) of an adult adoptee who uses their birth name as a family name but not as a married name, that they cannot keep their former family name as their sole family name in case of an adult adoption with limited effects, even if special, personality-related circumstances exist.
1. Contrary to the Senate majority’s view, the option of using a double-barrelled name as provided for in § 1757(3) first sentence no. 2 of the Civil Code does not reduce the severity of the interference caused by the obligatory change in name. From the outset, the severity of the interference could only be reduced by the option of using a double-barrelled name in exceptional circumstances, if the adoptee were in a position to at least initiate the necessary process themselves. However, the law does not provide for such a right of application for the adoptee, meaning that they themselves cannot bring about a decision on using a double-barrelled name. Additionally, the possibility of using a double-barrelled name, which in itself is only possible in exceptional circumstances, is dependent on a court decision to that effect and must be “necessary for grave reasons for the best interests of the child”. Whilst family courts currently appear inclined to take a generous view on this, there is no way of ensuring that this practice will endure, nor is this view, as mere current practice, constitutionally binding.
In addition, there is no scope for an interpretation in conformity with the Constitution. This is precluded by the intent of the legislator, who especially did not provide for a right of application of the adoptee and, by requiring “grave reasons”, explicitly created a strict material threshold. This bars an interpretation in conformity with the Constitution to the effect that almost any understandable interest qualifies as grave reasons for the best interests of the child in cases where the former family name has been carried for a considerable length of time.
2. Given the severity of the interference, the obligatory change in name in this situation cannot be justified under constitutional law. It is not proportionate in the narrow sense.
a) Contrary to the Senate majority’s view, in cases such as the present one, the legislator is not afforded latitude with regard to the law on names in the determination of the name to be used after the adoption. Rather, with regard to the adoptee, the legislator is required to adhere strictly to the principle of proportionality with regard to the adoptee.
b) The main public interest purpose as identified by the Senate majority, namely the visibility of the parent-child relationship newly established through the adoption, cannot be deduced with certainty. In any event, it would only be of limited weight.
aa) The Senate majority’s view also finds that the legislator does not explicitly pursue this purpose. Rather, it is regarded as the objective intent of the legislator, given that adult adoption was regulated through extensive reference to the law on the adoption of minors. Despite the fact that achieving complete integration into the new family, as in the case of the adoption of minors, is precisely not the intended effect of an adult adoption with limited effects, the relevant legislative materials do not include any deliberations on the effects with regard to the law on names in the context of adult adoption, and exceptions to the principle of unity of the family in the joint name were more readily available at the time, the Senate majority’s view considers precisely this absence of special rules as giving sufficient “indication” of the transferability of the purpose pursued in cases of adoption of minors. However, it appears equally plausible that the legislator did not give any thought to the effects of an adult adoption with limited effects with regard to the law on names, and did not intend for these cases to participate in the purpose of the rules created for the adoption of minors. In particular, this latter view is supported by the fact that the legislator has chosen to end the effects that adult adoptions have with regard to the law on names with the Act of 11 June 2024, which will enter into effect on 1 May 2025.
bb) In any case, the assumed public interest in creating visibility for the parent-child relationship newly established through the adoption is not sufficiently significant.
The significance of this public interest is limited by the many existing statutory and factual qualifications on the assigning effect of the law on names in parent-child and other familial relationships. In a social context, a name no longer has a reliable assigning function. From the outset, the familial relationships created through an adult adoption with only limited effects are only made visible to a limited degree through the assigning of a name. For many persons who no longer use their birth name as their family name, the legislator refrains from effecting the external visibility of the new parent-child relationship from the outset. Conversely, in the case of adult adoption with limited effects, following the change in name, the continuing familial relationships of the adoptee with their original family are oftentimes no longer represented at all, which counteracts the general assigning function. In the context of the law on names, the legislator therefore departs from its prioritisation in family law. Overall, the legislator has already significantly relativised the visibility of family law relationships as effected by the law on names, whilst the factual development of varied and diverse family models has contributed further to this relativisation. Today, the lack of a uniform family name no longer indicates the lack of a family unit.
c) In light of the foregoing, the provisions referred in the case at hand, § 1767(2) first sentence in conjunction with § 1757(1) first sentence of the Civil Code, are not proportionate in the narrow sense. The public interest in the adopting person and the adoptee visibly sharing the same name following an adult adoption with limited effects has little significance, especially because of the many legal and factual relativisations of the purpose of this rule. Additionally, and contrary to the Senate majority view, the fact that this purpose is only achieved to a small degree further limits the significance of the public purpose alone and does not reduce the interference with the general right of personality. The decisive factor for the general right of personality of those affected is their legitimate subjective interest in this regard. A shared name with the original family in a particular case equally provides a level of identity, which in itself does not require broad recognition by third parties.
The considerable, at times even severe, interference with the general right of personality is not offset by the opposing limited public interest. This is the case at least where there is special relevance with regard to personality, such as in cases where the adoptee has used their birth name as their family name for a long time and therefore has a particular interest in continuing to do so. Especially people who are married, but chose not to adopt a married name, often have a particularly strong connection to their name for personal reasons. But also in cases where the adoptee has children of their own who have the same family name – as in the present case – the interest in continuing to use this name can be particularly strong. In these cases, the identification with one’s own name and a lack of willingness to relinquish it amounts to a particularly strong expression of personality as protected by Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.