Learn all about constitutional complaints in family law: fundamental rights, requirements, the role of the Federal Constitutional Court and case studies. If fundamental rights appear to be threatened, the constitutional complaint offers a way to seek a hearing and justice at the Federal Constitutional Court. But what exactly is behind this legal instrument and to what extent is it relevant in the area of family law? In this blog post, we explore the mechanisms of the constitutional complaint, shed light on the fundamental rights particularly affected in family law and clarify which requirements must be met in order to take this step. We discuss the role of the Federal Constitutional Court in this context and use typical case studies to illustrate when a constitutional complaint has a chance of success. In addition, the opportunities and risks of a constitutional complaint in family law are weighed up. Immerse yourself with us in the world of constitutional protection for those affected by family law.
What is a constitutional complaint?
The constitutional complaint is an essential legal instrument in the German legal system, which offers citizens the opportunity to defend themselves against violations of their constitutionally guaranteed rights by public authorities. It is characterized as an extraordinary legal remedy and enables those affected to submit their cases to the Federal Constitutional Court in order to obtain a supreme court review of any violations of fundamental rights. This instrument is particularly relevant if all other judicial instances have been exhausted and the constitutional complaint is therefore the last resort.
The application of this legal remedy requires certain prerequisites. For example, the complainant must be directly, personally and currently affected by the violation of fundamental rights. Furthermore, it is necessary that he has already exhausted the legal process up to the highest possible instance, which means that no further ordinary legal remedies are available, and thus the alleged violation would be legally final if the constitutional complaint were not filed.
Translated into the specific area of family law, relevant fundamental rights that are frequently asserted in the context of constitutional complaints include the right to the inviolability of the family, the protection of marriage and the family, and parental rights. Constitutional complaints in family law can, for example, relate to decisions of the family courts that interfere with the above-mentioned fundamental rights and impair the right to family life of those affected.
Assessing the chances and risks of a constitutional complaint in family law is complex and requires careful consideration of the prospects of success and possible negative consequences. On the one hand, there is the possibility that the Federal Constitutional Court will accept the complaint and thus successfully extend legal protection; on the other hand, a rejected complaint can mean additional costs for the complainants without improving their legal situation.
Relevant fundamental rights in family law
In the context of family law, fundamental rights play a central role, as they provide key principles for regulating family matters and serve as an essential guideline for legislative measures and judicial decisions. The importance of these fundamental rights is manifested in particular in the respect for and protection of privacy, the structuring of parental rights and the requirements for state care and intervention.
A primarily relevant fundamental right in the area of family law is the right to marriage and family, which is enshrined in Article 6 of the Basic Law. This article protects the institution of marriage and the family as pillars of society and gives the legal relationships established therein a special status to be protected by the state, which is reflected in various legal regulations and provides the basis for the question of parental custody, maintenance rights or rights of access.
Parental rights are also a fundamental part of the basic rights that are important in family law. Parental rights, which include both rights and duties for the well-being of the child, are protected by the provisions of the Basic Law and lead to a balancing of the state’s guardianship and parental autonomy. The protection of the best interests of the child plays a particularly important role here, defining the framework for parental action and state intervention rights and demanding a balance between these spheres.
In matters relating to family law, the principle of equality is often also important, as it prohibits discrimination on the basis of marital status or gender. This principle stands for the equal treatment of all family members and excludes legal discrimination, for example in case law or administrative decisions. The interplay of these fundamental rights results in a complex yet essential framework that stands for justice, equality and the protection of individual freedoms in family law.
Requirements for a constitutional complaint
In order to be able to file a constitutional complaint with the Federal Constitutional Court, it is first necessary to assert a violation of fundamental rights that directly and currently affects the complainant; this means that an abstract or merely feared impairment is not sufficient to justify a constitutional complaint.
Furthermore, it is necessary that legal recourse has been exhausted, which states that all available judicial options for obtaining legal redress must be exhausted before the Constitutional complaint can be used as an extraordinary legal remedy; in concrete terms, this means that, as a rule, a constitutional complaint may only be lodged if, for example, supreme court decisions have already been issued and therefore no further ordinary legal remedies are available.
In addition, the constitutional complaint must be submitted in due form. This must be done within a certain period of time – usually four weeks after the decision, judgment or law at issue has been opened – and the documents and evidence required to substantiate the appeal must also be available to the court in a prescribed form in order to enable a proper examination.
Finally, it is important to note that the complainant has not yet submitted the so-called Subsidiarity clause which states that all other options for resolving the conflict of fundamental rights must be exhausted before appealing to the Federal Constitutional Court in order to ensure a successful resolution. Constitutional complaint This also includes the use of other available administrative intervention options in addition to the exhaustion of legal remedies.
The role of the Federal Constitutional Court
The Federal Constitutional Court occupies a key position in the German legal system, as it is the highest authority on constitutional issues and monitors compliance with the fundamental rights enshrined in the Basic Law. It acts as an independent guardian of the constitution by deciding whether or not laws, ordinances and all government measures are compatible with the Basic Law.
The authority of the Federal Constitutional Court extends to all levels of government and binds the legislature as well as the executive and the judiciary. Especially in the case of a constitutional complaint, i.e. the legal remedy with which citizens can appeal directly to the Federal Constitutional Court, its function as a protective power of individual fundamental rights is particularly important.
The Federal Constitutional Court plays an important role in the area of family law, as it decides on the compatibility of family law regulations with the Basic Law when it is called upon. For example, it can rule on the constitutionality of laws on divorce, custody or maintenance and thus exert considerable influence on the design and further development of family law.
Through its decisions, the Federal Constitutional Court sets standards and provides guidelines that are groundbreaking for the case law of the lower courts and thus influence the legal situation in family law in the long term. Accordingly, the role of the Federal Constitutional Court is not only to be seen in the control and safeguarding of the constitutional order, but also in its function as a guarantor for the further development of the law and the protection of fundamental rights in the family context.
Typical case examples for constitutional complaints in family law
The constitutional complaint in family law is a legal instrument that offers citizens the opportunity to defend themselves against decisions of the family courts if they believe that these are contrary to fundamental rights. A typical example is the challenge of a custody order, which is perceived as an encroachment on the fundamental right of parents to raise their children (Article 6 (2) of the Basic Law). The argument here is that the best interests of the child were not sufficiently considered or that the decision taken was not based on an appropriate weighing up of the interests of all parties involved.
In another typical case, a constitutional complaint could arise from a contact dispute if a parent is prevented from having contact with the child without valid reasons. This may be considered a violation of Art. 6 para. 1 GG, which guarantees the protection and promotion of the family, and at the same time against Art. 2 para. 1 GG, which encompasses the general freedom of action and in principle also includes the right to have contact with one’s own children.
In addition, a constitutional complaint can be lodged in the context of maintenance decisions. The complaint may be based on the fact that the maintenance payments set are disproportionately high and therefore unlawfully violate the right to property in accordance with Article 14 of the Basic Law, or that unequal treatment has taken place on the basis of gender, which would violate the principle of equality in Article 3 of the Basic Law.
A final example concerns cases in which the adoption of a child is enforced against the will of a biological parent. A constitutional complaint could be filed here arguing that this constitutes a violation of Art. 6 para. 2 GG, which protects the parental right to the care and upbringing of children as a natural right and as their primary duty. These examples illustrate the range of ways in which constitutional complaints can be used in family law to ensure the protection of fundamental rights.
Opportunities and risks of a constitutional complaint in family law
When considering filing a constitutional complaint in the area of family law, the persons concerned should carefully weigh up both the potential opportunities and the risks. One of the greatest opportunities is that, if the proceedings are successful, fundamental constitutional rights can be strengthened and the legal position of the complainant can be significantly improved. This can be particularly important when it comes to the right to a family, custody or contact with children.
Another opportunity lies in the signal effect that a successful procedure can have. Such a legal success can set precedents and thus have a significant and long-term influence on case law in family law. In addition, recourse to the Federal Constitutional Court can lead to the clarification of fundamental legal issues, which increases legal certainty for all citizens.
However, lodging a constitutional complaint also involves certain risks. The process is often lengthy and can involve considerable costs. If the complaint is unsuccessful, the complainant must expect these costs to be covered. Furthermore, there is a risk that the Federal Constitutional Court will not even accept the complaint for decision, which can often be a disappointing experience for the parties involved.
It should also be borne in mind that a constitutional complaint is generally only possible after the regular legal process has been exhausted. This means that all previous legal options must have been unsuccessful. All in all, this shows that careful consideration and, if necessary, the consultation of experts are essential before taking the step of filing a constitutional complaint in family law.
Frequently asked questions
What is a constitutional complaint?
A constitutional complaint is a legal remedy with which citizens can submit to the Federal Constitutional Court that their fundamental rights have been violated by public authorities.
Which fundamental rights are particularly relevant in family law?
In family law, the fundamental right to protection of the family, the right to marriage and family under Article 6 of the Basic Law and the general right of personality under Article 2 are particularly important.
Under what conditions is a constitutional complaint admissible in family law?
A constitutional complaint is admissible if all other legal remedies have been exhausted, the complainants are directly affected and the complaint is submitted within the deadline.
What is the role of the Federal Constitutional Court in constitutional complaints?
The Federal Constitutional Court examines whether an act of public authority, such as a law or a court ruling, has violated the fundamental rights of the complainants and can override these if necessary.
Can you give a typical case example of a constitutional complaint in family law?
A typical example is the appeal to the Federal Constitutional Court in custody disputes if a parent believes that their rights are being violated by the current regulations or by court decisions.
What chances does a constitutional complaint offer in the area of family law?
The opportunity of a constitutional complaint lies in the fact that far-reaching decisions that affect family life can be reviewed for their constitutional conformity and possibly lead to recognition of the violation of fundamental rights.
What risks should you expect with a constitutional complaint in family law?
The risks include the time and financial burden as well as the uncertainty of the outcome, as only a small proportion of constitutional complaints are successful.