Alexandra Wullbrandt is a family law attorney who encounters new people with their own personal stories and individual family law concerns almost every day. Familyship spoke with her about the changing nature of family.
Family change and the law
Ms. Wullbrandt, what is family for you personally?
Interesting question. I have never given this any concrete thought. I don’t have any children yet and I’m divorced, so the classic family model – mother, father, child – doesn’t apply to me, which I’m quite happy with. Otherwise, people I love, can trust and count on are family to me.
Do you perceive a change in the importance of family in society?
By all means, it is no longer the case that the institution of marriage is a necessity in order to create a family. Having a child without a (married) man has long since ceased to be a taboo subject and has become commonplace, just like the patchwork family.
Quite a large number of my clients, who come from all social and social classes, are often already in 2. or 3rd marriage married or has children from more than one past relationship.
The change is also evident in the changes in legislation and case law: while until 2013 only the married father “automatically” held joint parental care with the mother, it was almost impossible for the unmarried to obtain joint parental care for the child against the mother’s will. Thus, it always remained with the sole care of the mother. It was only in 2013 that the Bundestag decided that the relevant Section 1626 a of the German Civil Code, which the Federal Constitutional Court had already declared unconstitutional in 2010, would be rewritten. Joint parental custody has thus become the rule. The father can only be denied joint parental care if this is foreseeably detrimental to the child’s welfare.
If you go back further in history, you will find the “traffic right” of the divorced or unmarried father with his child, a kind of visitation right to the child, which was further developed into a kind of severely restricted right of access. At that time, the legislator assumed that the contact of the illegitimate or divorced child with the father is not beneficial for the child and the father. It was therefore mandatory for the parents to be married to each other in order to actively participate in the child’s development.
Today, fortunately, it is taken for granted that children can spend regular and ample time with the parent with whom they do not live. The claim is enforceable in court and, if necessary, also enforceable. Today, the legislator assumes that contact with the other parent is fundamentally beneficial to the child’s well-being and should therefore be carried out. However, it took decades to get this far.
On the other hand, the changing importance of the family for individuals is also reflected in other changes. Over the past few years, major areas of maintenance law have been reformed, thus reducing the burden on those liable to pay maintenance. Both postmarital and childcare maintenance were limited in time and those in need of maintenance were given more personal responsibility. In the past, it was assumed that a full-time job of the single parent until the child’s 12th birthday would not be reasonable due to childcare. Today, under certain circumstances, this can be expected of the predominantly or single parent from the child’s 3rd year of life and taken into account accordingly in child support.
The new legislation and case law on family law leads to a stronger equal treatment of legitimate and illegitimate children, both within the “family” and externally, and thereby also to more tolerance and acceptance of new family models.
What role do family constellations such as co-parenting or rainbow families play in your everyday work as a family lawyer?
At first glance, these family constellations are usually not recognizable at all, since the problems and issues to be dealt with are identical to those of a separated or divorced couple. Only when the client provides deeper insights into his private sphere does the special family constellation come to light. Then, however, it is usually the case that you have to do a little educational work with the courts and youth welfare offices, but ultimately – and fortunately this has changed in recent years – the same regulations and laws apply to all family models.
What questions do clients come to you with?
In the case of co-partnering, the parties involved often give concrete thought to the relevant issues of maintenance, contact and parental care in advance, which means that there are fewer court disputes after the birth of the child than in the case of separated/divorced couples. Accordingly, my advice is sought prior to the conception/birth of the child and advice is sought regarding child support, contact, parental care, inheritance law, etc.
The most interesting point here is the maintenance claim of the child as well as the mother, who furthermore often puts her professional career on hold for a time in favor of the child and then claims for childcare maintenance can arise against the child’s father.
Are there things in family policy jurisprudence that you would like to change?
There is certainly still potential for legislative improvement and reform in some areas. Spontaneously, for example, the topic of adoption rights for same-sex couples comes to mind. As described in my article, studies have found that children of same-sex couples are not unhappier than others. The objection of endangering the welfare of the child can therefore not apply. This would also strengthen the children’s rights, such as maintenance and inheritance rights. Moreover, successive adoption is permissible anyway, so I think the ban is purely a political issue.
In my opinion, there is also a need for change in the area of child support law, since the child support claim is (only) due to the parent who “predominantly” takes care of the child, whereby the “predominance” of one day per week is quite sufficient. Families living in the alternating model (child lives with both parents equally) or in which very frequent contact with the other parent takes place (e.g. every Friday – Monday) have so far remained unregulated by the legislator and are subject to the jurisdiction of the respective courts.
As an attorney, you are, in a sense, gathering condensed life experience about your clients. Is there any advice you would like to share with our users as they start a family?
As I said earlier, I’ve noticed that with co-partnering, basic considerations are often made ahead of time and the prospective parents agree on their “roles” and responsibilities. It would be desirable, especially for the children, if other (future) parents would take this as an example, because unfortunately neither marriage nor a fixed relationship is a guarantee for “eternal” coexistence and in the event of a separation, many things are sometimes disputed that could have been clarified or agreed upon in advance.
I can also only advise every parent not to take a break from working life entirely or for too long because of raising children. As already mentioned, the alimony law has been reformed and the parent entitled to alimony has thus been obliged to earn his or her own income more intensively and at an earlier stage, despite raising children.
Ms. Wullbrandt, thank you very much for this interview.