Grossly incorrect application of the law is arbitrary
In the case of an adult adoption, spouses can only adopt the child together adoption; an individual adoption is excluded in accordance with Section 1741 Para. 2 Sentence 2 BGB (BGH NJW-RR 2021, 1514). However, if a family court - without further justification - only grants adoption by one spouse, this could constitute a violation of the Prohibition of arbitrariness (Article 3 (1) of the Basic Law). Can a party lodge a constitutional complaint against this? What consequences would a successful appeal have with regard to the adoption decision itself?
What exactly was it about?
A married man (adopter) applied for the adoption of his grandnephew (adoptee), who is also married. The adopter's marriage produced a daughter; she is considered to be the first line heir. As a party to the proceedings, she pointed out to the family court that the adopter would oust her from this position, as he would become the first-line heir to the farm instead of her. The family court nevertheless ruled in favour of adoption by the adopter alone, without going into the provisions of Section 1741 para. 2 sentence 2 BGB and the existing case law of the Federal Court of Justice, according to which spouses can only adopt a child jointly. The daughter then unsuccessfully lodged a complaint against the hearing and subsequently a constitutional complaint. She complained that her right to be heard (Art. 103 Para. 1 GG) and the prohibition of arbitrariness (Art. 3 Para. 1 GG) had been violated.
What did the BVerfG decide?
The BVerfG considered the appeal to be admissible and well-founded: The decision of the family court violated the prohibition of arbitrariness, as a clear statutory provision and supreme court case law had been disregarded. A unilateral adoption by only one spouse was legally untenable. The chamber left open whether there was also a violation of the right to be heard in accordance with Art. 103 Para. 1 GG. The case was referred back to the family court for a new decision.
In contrast to ongoing proceedings at the Federal Constitutional Court (case no. 1 BvR 911/21), a child of the adopting party, the daughter, was involved here in accordance with Section 193 FamFG. She was initially heard, but was not subsequently summoned to the hearing of the spouses. She could also complain of a violation of the prohibition of arbitrariness, as she is directly affected by the decision of the family court. This is because she would be displaced from the 1st to the 2nd line as the heir to the estate. In this context, the chamber also clarified that parties are not obliged to expressly object to violations of fundamental rights in specialised court proceedings if this is not required by procedural law. And such violations of fundamental rights were evident here.
The family court's decision was based on a grossly incorrect application of adoption law. There was no viable justification for the deviation from the prevailing opinion and supreme court case law. The decision was also not merely an incorrect application of the law, but was not legally justifiable under any conceivable aspect. It therefore violated the prohibition of arbitrariness.
What does that mean?
Irrespective of a possible violation of the right to be heard, the decision emphasises the duty of the specialist courts to apply the relevant standards and supreme court case law in a well-founded manner.
In order to avoid lengthy proceedings, explicit reference should therefore be made in the initial proceedings to the relevant content of the standard and the need for appropriate justification in the event of a differing legal opinion. Even a mere oversight can be corrected in this way.
Where the boundary between the mere application of the law and arbitrariness lies must be examined on a case-by-case basis. If there is no recognisable objective reason and there is a deviation from prevailing opinion or supreme court case law without sound justification, this may violate the prohibition of arbitrariness. In cases of doubt, it is advisable to lodge an objection to being heard and, if necessary, subsequently lodge a constitutional complaint.
Dr Marko Oldenburger
Specialist lawyer for family law and medical law
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