Last night, I received this e-mail:
A married but separated woman asked if German law allows her husband to have babies with another woman while they aren’t yet divorced.
Because this question comes up regularly, let me answer it once and for all:
1) German law doesn’t “allow” husbands to have babies because
(a) no one needs statutory permission, an official permit, a license, a certificate or anything else to have babies. It just happens when a man and a woman really, really like each other and begin to hold hands and do other naughty stuff (don’t ask for details because I am not an expert on reproduction);
(b) men can’t have babies (I know that much).
2) Therefore, your question really means either (a) Is there any punishment for your husband? (b) Is there any punishment for the other woman? (c) Will the court try to abort the pregnancy? (d) Do you have any other legal remedy that a court could impose on any of the other three persons involved (husband, other woman, child)?
3) Regarding your husband and the other woman, German law has in § 60 of the Criminal Code incorporated the old Roman law concept of poena naturalis. This means that a culprit does not deserve punishment by a court if he/she already heaped enough punishment or negative consequences on him/her through the deed that he/she committed.
Leaving aside the fact that no crime has been committed at all because your husband and the other woman are free people in a free country, they might end up having a baby. I would argue that this is not only punishment enough, but indeed a much more severe and long-term punishment than any court could mete out. Their lives will be ruined for the next 20 years. You may gain satisfaction from this.
4) You could try to ask the court to force the other woman to have an abortion, but I don’t think this would be successful, for the following reasons:
(a) I am afraid it might be considered a bit cruel and a violation of the other woman’s right to bodily integrity, a family life and human dignity, all protected under the German Constitution.
(b) It would in a way also be a punishment of the (unborn) child, although none of this is his/her fault.
(c) It’s not the Middle Ages anymore, but 2015.
(d) Why would it be any of your business if two other human beings have a baby together?
5) Similar arguments would apply if you were to seek a court order for the killing of the baby after it will have been born.
6) If you are harboring thoughts of requesting the court to order your husband to abandon the other woman, any potential child, to return to you and to love you again and/or to apologize to you, I refer you to a similar case and my answer thereto.
(By the way, if you are contemplating contacting me for legal advice, don’t be put off by me publishing some of these e-mails from time to time. You can easily avoid this fate by paying me for giving advice instead of expecting me to spend my weekend dishing out free advice. Weird concept, I know.)