The court case requiring the preliminary question concerned a couple married in 1975, with two daughters resulting from the marriage. In 1987, the man had a child by another woman, said child being born out of wedlock.
In 1997 the couple established a marriage contract which dictated that the partner surviving the other partner would inherit the other's estate. Once the man died, the son born from the other relationship took the wife of the deceased and his two daughters to court, as he believed he had the same right to inherit, as a natural son, as the man's two children born of wedlock.
As a result, the son argued that the marriage contract could not remain applicable. On the other side, the wife and daughters argued that article 1527, line 2 of the civil code was not applicable given that the son had been born after the initial couple had married.
The constitutional court has ruled on the matter with a verdict strengthening the inheritance rights of children born out of wedlock, especially after a prior marriage. The ruling ascertained that the civil code article does not conform to article 10bis, paragraph 1 of the constitution. The non-conforming nature of the article resides in the fact that the civil code article does not envision any claw-back proceedings ('action en retranchement') for a child born after one of their parents' is already married. A claw-back proceeding is designed to protect the child of one of the married parties in the event of their parent's death.
The constitutional court judge reformulated the Diekirch court's question, focusing on the difference between a child born before their parent gets married to another partner and one born after their parent is married to someone else. Ultimately, article 757 of the civil code also presumes that natural children have the same inheritance rights as legitimate children, regardless of when the natural child is born.
The court ruled that there is no due cause to refuse claw-back proceedings to a child born after their parent is married to another, the difference not holding a rational justification. The constitutional court consequently ruled that line 2 of article 1527 in the civil code is incompatible with Luxembourg's constitution.
