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BGH: South African women marriage binds German registry office
Karlsruhe (jur). The child of a South African woman can also have two mothers in Germany if the biological mother is married to the other woman according to South African law. The German registry offices must recognize this and register the "co-mother" as the second parent, as the Federal Court of Justice (BGH) in Karlsruhe decided in a judgment published on Wednesday, June 15, 2016 (file number: XII ZB 15/15).
In the determined case, a South African woman had a child in 2010 through artificial insemination. She is married to another woman under South African law. The civil registry office in Berlin-Schöneberg registered the marriage as a same-sex civil partnership. However, it refused to recognize the life partner as a second parent under German but a wife under South African law.
As the BGH decided, it has to do this now. As a result, the child automatically becomes a German citizen as a child of a German.
The Karlsruhe judges stated that the descent of a child born abroad was governed by the laws of the country in which the child was habitually resident, even under German law. This is South Africa here. And South African law assigns the child the two spouses as parents.
A legal clause that limits the effect of a civil partnership registered abroad on the German civil partnership does not apply here. According to South African law, same-sex marriage should be classified here as a civil partnership. The “capping limit” for the effect of foreign same-sex partnerships is aimed at their existence and the rules of dissolution. The parentage of the child, on the other hand, is subject to independent rules and should therefore not be seen as an “effect of a civil partnership”.
There was also no violation of public order and the best interests of the child. “Rather, it can be assumed that the conditions of a legally solidified same-sex partnership can promote the growth of children as well as that of a marriage. The child's well-being does not stand in the way of recognition, ”explained the Karlsruhe judges.
Artificial insemination is also allowed in Germany and excludes the sperm donor from legal paternity. The child's right to know its biological ancestry "is not affected by the legal parent-child assignment", says the Karlsruhe decision of April 20, 2016. (pm / zwo)