Marriage for all: equal rights, equal duties for homosexual and heterosexual couples

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Since 1 October 2017, the marriage applies to all. But that also means that since the day the registration of civil partnerships is no longer possible . However, previous partnerships are not automatically converted into a marriage. The transformation must happen in the registry office – a new appointment is therefore necessary. However, equality of rights and obligations of the (new) spouses takes place retroactively up to the date on which the civil partnership was registered. However, there is no obligation to convert the registered partnership into a same-sex marriage.

Law change is according to expert opinion constitutionally

Already in the coalition talks that led CDU, CSU and SPD to the federal elections in 2013 , it was agreed that the legal disadvantages for people in registered partnership should be abolished. The so-called “gay marriage” has been possible in Germany since 2001, but the scope of the associated rights and duties was still significantly different from those in the marriage between a man and a woman. The topic was given in several committees and further discussed here. Following the surprise opening of civil marriage for same-sex partners in (after all, Catholic) Ireland in 2015, public debate picked up again . Various judgments of the Federal Constitutional Court and the European Court of Justice had in the meantime strengthened the rights of gays and lesbians.

In June 2017, both Alliance 90 / The Greens and the FDP and the SPD made a corresponding change to the law a condition for a coalition after the 2017 general election. At the end of the same month, the political decision-making process had an unexpected dynamic. During a podium discussion , German Chancellor Angela Merkel said that the issue of “marriage for all” should be “resolved in the direction of a conscience decision”. The co-governing SPD, using the votes of Left Party and Alliance 90 / The Greens, forced a swift decision on the necessary legislative change. That caused a heated argument in the governing coalition . Contrary to the will of the Union parties, the vote was scheduled for the current week of the Bundestag. Friday, the 30th of June, was the last day before the summer break – and the general election. The Chancellor raised for the deputies of the CDU and CSU while the fractional constraint. However, she voted against the amendment.

supporter opponent abstentions
CDU / CSU 75 225 4
SPD 192 0 0
The left 63 0 0
green 63 0 0
Non-attached 0 1 0
total 393 226 4
  63.1% 36.3% 0.6%
  • Result of the Bundestag vote on June 30, 2017

After the decision of the Bundestag some politicians and lawyers expressed doubts that the redefinition of the concept of marriage might not be constitutional . Also, lawsuits were considered before the Federal Constitutional Court. Among other things, the Free State of Bavaria announced a precise legal review. The subject of the discussion is the question whether the Basic Law only places marriage between a man and a woman under the “special protection of the state order” (Article 6, paragraph 1). However, the vast majority of constitutional and legal experts interviewed by the Bundestag in preparation for voting believe that the Basic Law is not privileged . Therefore, the amendment of the Civil Code is sufficient.

adoption rights

The biggest change in marriage for all concerns adoption law. So far, the two partners in a registered civil partnership could only adopt one child at a time and in succession. The so-called succession adoption stipulated that only one partner had to accept a foreign child as his own before the other was allowed to adopt the child as well. Both had to go through the elaborate adoption process. With the change of law on marriage for all, it is now also possible for homosexual couples to adopt a child together – in other words, in fact, together and at the same time.

Stepchild adoption

Since 2005, the step-child adoption has already been permitted for registered partnerships. This means that if one partner already has a biological child, the other partner may adopt it as a stepchild. Stepmother or father receive the same rights and obligations as their biological parents. These include, for example, full custody, maintenance obligations or statutory inheritance rights. In addition, the family name is now entered as the birth name of the child. The decision for a stepchild is life-long – it can not usually be reversed. At the same time, all legal relationships with the other biological parent and their relatives expire with the adoption.

The youth welfare office makes home visits in advance of the adoption and holds intensive discussions with parents and children. But it is also mandatory that both birth parents must agree to the adoption – even if the other parent has no custody. From the age of 14, the child must also agree to the adoption. In addition, it should know about the changes, not least because the family court can interrogate the child during the hearing regarding the step parent.

Complication for gay women

However, for women living in a registered partnership, a decision of the Federal Court of Justice in 2015 made the step-child adoption more difficult on one point: If the child was conceived by a private sperm donation , the birth-father always has to give his consent to the adoption give. This is to ensure that the producer really does not value paternity. In contrast, this is not necessary with anonymous sperm donations because the family courts assume that there is no personal connection between mother and father and that the donor is not interested in the role of father.

Even with the new “marriage for all”, the partner is not automatically considered a “co-mother” if the child is born in marriage. Here, too, the common adoption of the child as before is only about the way of stepchild adoption. A government commission – the “descent working group” – submitted a recommendation for the reform of the right of descent only a few days after the decision in the Bundestag. It has been suggested that the second parenting position of married lesbian women may also be occupied by the “co-mother” when the child is born into the marriage. However, a legal equality of homosexual and heterosexual couples in this point is to be expected only in the 2017-2021 legislature.

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Tax treatment

From a tax point of view, same-sex civil partnerships and the marriage of a woman and a man have been the same since 2013. The Federal Constitutional Court ruled that the unequal treatment of spouses and registered partners was not constitutional on this point. This meant that, according to the ruling of the highest judges, homosexual couples were allowed to use the tax benefits previously reserved exclusively for spouses. The Constitutional Court instructed the legislator to adjust the Income Tax Law retroactively to August 1, 2001 (when the same-sex civil partnership had been introduced).

Since 2013, registered civil partnerships have been able to use spouse splitting for themselves. In this procedure, a married couple is taxed differently than, for example, two individuals living together. The idea of ​​the splitting, introduced as early as 1958, is to conceive and tax two spouses as an economic unit, which makes sense where both spouses make different contributions to the total income . The spouse splitting works as follows:

  1. The taxable income of both partners is added together and halved.
  2. On the basis of the halved amount the tax office calculates the due income tax.
  3. This amount will be doubled.

The ruling of the Federal Constitutional Court also enabled persons in registered partnerships to profit retroactively from the splitting rate . So far, individually assessed, they could now apply to the tax office for a joint assessment from the date of registration of the civil partnership. This resulted in tax refunds, but only under certain conditions – for example, if the filing of the tax return is not yet barred (four-year term) or the tax assessment of a partner was not yet valid (in jargon: “open”) was. Otherwise, no tax benefits could be claimed retroactively.

Common bank accounts

Even before the law was reformed, gay couples had the opportunity to have a common account; as well unmarried heterosexual couples. But with the marriage gets for newlyweds the so-called community account a new meaning: It signals that both spouses now want to shoulder the common expenses – such as for rent, living or vacation – together .

However, most couples are unlikely to give up their previously existing individual accounts, but are likely to buy an additional, co-managed “household account” . From this go then the rental payments, fuel costs, food costs, insurance premiums, etc. from. Of course, each pair decides how the balance is composed. For some couples, each partner transfers the same amount, for others, the deposit is calculated pro rata by salary.

There are basically two options for joint accounts:

  • And Account: In this form, transactions are only possible if both account holders agree. The spouses, for example, have to agree on transfers or payouts; one person alone can not decide. An and account can best be used as a rental account or for other fixed charges. It is hardly suitable for everyday use: according to Stiftung Warentest, such accounts are never issued with a debit or credit card.
  • Or account: In this form, each owner may own the account by himself. Whether you want to withdraw money, pay an invoice by bank transfer or set up a new standing order – a mutual vote is not required before. Even if and to what extent you use a discretionary credit is the responsibility of the individual. However, no spouse alone may conclude a credit agreement at the expense of the account or issue a power of attorney over the account – this is only possible with the prior consent of the other partner.

The Oder account is the more common form due to its greater practicality . Only a few banks still have the and account on offer. Occasionally it is used by associations that want to better prevent abuse by the need for double signatures. Even in the event of the death of a spouse, a high administrative burden is associated with the and account because the surviving spouse is then only allowed to complete all transactions with the permission of the heirs (community).

Shared responsibility and shared liability

Even with Oder accounts, there are some conditions to consider. While it is convenient for each partner to have access to the account, this benefit can quickly be detrimental if a partner tends to “go it alone”. Big debits or even slipping into the Dispo gets the other partner then maybe some time later in the first place. Even more problematic is the situation when one of the two account holders owes money to a third party. This can then namely have the community account seized . Then no one comes closer to the common money.

In addition , the other partner is always liable for overdrafts – and in full. As consumer advocates explain, banks usually do not necessarily turn to the one who caused the debt, but to the one who originates the bank, that he (or she) is most likely to repay the debt. Also with the credit there is no regulation, if both partners each half of the money belongs. This must be clarified by the couple themselves.

Living Will

Although marriage for all stands for security and security, no matter what sex the spouses are. Nevertheless, there is no “legal representative power” after a marriage, as it is called in the legal jargon. This means: In emergency situations – for example after a serious accident or stroke – the spouse may not automatically make medically relevant decisions for the other person.

The following applies to adults: Others may only appoint them for (and above) if they have valid precautionary powers or if a court has appointed a legal guardian . This also applies in emergencies. Even here there is no right of representation by spouses or registered partners . In medical emergencies, it can happen that one spouse can not make a decision (for example, because he is unconscious or in a coma) and the other spouse is not allowed to do so. Heavy decisions – for example, on which examinations are still to be performed or whether surgery is to be performed – are then left alone in the hands of the attending physician.

In a living will, every spouse or partner settles in advance which forms of treatment he wishes and which he refuses. The more specific the living will is, the better : in this way, physicians and authorized representatives can orient themselves to the wishes of the patient in the specific situation. The patient’s will is binding on the doctor; even though he may consider a particular life-saving measure to be appropriate, he may not use it if it is contrary to the patient’s wish.

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What does a living will look like?

The living will has certain formal requirements for it to take effect. According to the case law of the Federal Court of Justice treatment situations must be described as specific as possible, even with the medical measures must be determined which are desirable and which not. Of course, as illnesses can vary considerably and not everything is predictable, the living will can not and must not regulate everything down to the last detail. Nevertheless, according to the recommendation of the Federal Ministry of Justice and Consumer Protection, there are a number of issues which must be taken into account in the living will:

  1. input formula
  2. Situations in which the living will apply
  3. Determination of medical / nursing measures, in particular to:
    – life-sustaining measures
    – pain and symptom treatment
    – artificial nutrition and hydration
    – Revival
    – artificial respiration
    – Dialysis
    – antibiotic use
    – Transfusion of blood / blood components
  4. Wishes to place and accompaniment
  5. Information about further precautionary orders
  6. Reference to attached explanatory notes to the living will
  7. Declaration about organ donation
  8. Complimentary close
  9. Closing remarks
  10. Date, signature
  11. Update (s), Date, Signature
  12. Appendix: Values

Marriage for all international

Worldwide, same-sex couples in 21 countries can close fully civil marriage. The pioneers were the Netherlands , which was the first state to grant homosexual couples the right to marry in 2001 with the “wet open huwelijk”. Although marriage has been introduced for all in other countries, it does not always apply in all parts of the country. For example, gays and lesbians in the UK can only marry in England, Scotland and Wales, but not in Northern Ireland. However, some Eastern European countries, such as Poland, Hungary or Bulgaria, have banned same-sex marriage in their constitutions. Many Asian and African states have even criminalized homosexuality as such, and in countries such as Iran, Sudan and Saudi Arabia, homosexuals are openly threatened with the death penalty.

In the following countries, heterosexual and homosexual couples are legally equated nationally:

since country since
Argentina 2010 Luxembourg 2014
Belgium 2003 Malta 2017
Brazil 2013 Netherlands 2001
Denmark 2012 Norway 2009
Germany 2017 Portugal 2010
Finland 2017 Sweden 2009
France 2013 Spain 2005
Ireland 2015 South Africa 2006
Iceland 2010 Uruguay 2013
Canada 2005 USA 2015
Colombia 2016    
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With the decision of the Bundestag and the consent of the Bundesrat , same-sex marriage came into effect on October 1, 2017 . Gay and lesbian may now marry, the registered partnership expires. The most important change is that homosexual spouses can adopt children together. In many other areas – such as tax treatment, joint accounts or medical dispositions – marriage and life partnerships have been treated as equal. Nevertheless, the introduction of “marriage for all” is more than just a symbolic act. It is a step towards less discrimination against homosexual couples – and means the recognition of a world that has long become more colorful.