Kaufhold & Réveillaud supports the fight against homophobia and transphobia, and takes this opportunity to review the adoption rights of homosexual couples in Luxembourg.
Enjoy your reading!
An adoption application may be submitted to the Luxembourg courts when :
the adopter(s) reside(s) in the Grand Duchy of Luxembourg,
the adopter(s) reside(s) abroad, if the person whose adoption is requested resides in the Grand Duchy of Luxembourg.
The conditions for adoption are governed by the national law of the adopter(s).
In the case of adoption by two spouses of different nationalities, the applicable law is that of their common habitual residence at the time of the application.
The conditions for adoption are governed by the national law of the adopted person, unless the adoption has the effect of conferring on the adopted person the nationality of the adopter, in which case the national law of the adopter applies.
The effects of the adoption are governed by the national law of the adopter(s).
In the case of an adoption by two spouses of different nationalities, the law applicable to the effects of the adoption is that of their common habitual residence at the time the adoption took effect.
The adoption procedure is initiated by a petition to the district court, drafted by a lawyer and signed by the adopter(s), and the adoptee if over 15 years of age.
The hearing is held in chambers, in the presence of the public prosecutor.
The operative part of the judgment pronouncing the adoption is transcribed, at the request of the public prosecutor, into the civil status registers of the adopted person’s place of birth, or of Luxembourg City if the adopted person was born abroad or if the place of birth is unknown.
In the case of a simple adoption, the adoption adds a parent-child relationship to the pre-existing one.
The adoptee therefore remains in his or her family of origin, retaining all rights and obligations, including hereditary rights.
In the case of a full adoption, the parent-child relationship established by the adoption replaces his or her original parent-child relationship, and the adopted child ceases to belong to his or her family by blood.
Adoption confers on the adopted person and his/her descendants the same rights and obligations as if he/she had been born of the adopters’ marriage.
Unlike full adoption, simple adoption is revocable.
Article 349 of the Civil Code specifies that an adoption by more than one person is only authorized if they are both spouses.
Two unmarried people cannot adopt together.
Since the law of July 4, 2014, Article 143 of the Civil Code has provided that people of the same sex can marry, so since then they can also proceed together with an adoption.
Various conditions must be met for an adoption to be authorized, including the following:
one of the spouses must be at least 25 years old, the other at least 21 ;
adopters must be at least fifteen years older than the child they intend to adopt;
in the case of full adoption, the child to be adopted must be under sixteen years of age;
adoption cannot be requested before the adopted child has reached the age of three months;
if the filiation of a minor child is established with regard to one or both parents, the latter must consent to the adoption;
if the adopted person is over fifteen years of age, he or she must consent to the adoption;
adoption can only take place if there are just grounds and if it presents advantages for the adopted person.
The reference to “spouses” in the Civil Code excludes partners in a registered partnership (amended law of July 9, 2004) and cohabitants from exercising the right to adopt.
As the law currently stands, an unmarried couple (whether homosexual or heterosexual) cannot make a joint application for adoption, whether simple or full.
It is possible for a member of a heterosexual or homosexual couple to adopt the child of the other member of the couple, either outright or in full, provided they are married.
The conditions applicable to this type of adoption are identical to those mentioned above for adoption by a couple, with the exception that there is no age requirement for the spouses, and the age difference between the adopter and the child is only ten years.
At present, heterosexual and homosexual couples are not allowed to adopt their partner’s or cohabitee’s child.
This refusal is motivated by the fact that adopting the child of a partner or cohabitee would have the effect of transferring parental authority over the adopted child to the adopter, thereby forfeiting the rights of the biological parent.
The adopters/adopter and his/her spouse can choose to give the child both their names or the name of one of them.
They can request that the child’s first name be changed.
Article 346 of the Civil Code specifies that an adoption by several people is only authorized if they are both spouses.
Two unmarried people cannot adopt together.
Since the law of May 17, 2013, same-sex couples have been able to marry, so since then they have also been able to adopt together.
Various conditions must be met for an adoption to be authorized, including the following:
the spouses must have been married for more than two years or both must be over 28 years of age;
adopters must be at least fifteen years older than the child they intend to adopt;
in the case of full adoption, the child to be adopted must be under fifteen years of age;
the child must have lived in the home of the adopter(s) for at least six months;
if the filiation of a minor child is established with regard to one or both parents, the latter must consent to the adoption;
if the adopted person is over thirteen, he or she must consent to the adoption.
The wording of the Civil Code, by providing for adoption by spouses, excludes the possibility of an unmarried couple (homosexual or heterosexual) adopting together in simple or plenary form.
The Civil Code provides for the simple or full adoption of a spouse’s child.
Full adoption of a stepchild is permitted:
when the child has legally established filiation only with the spouse;
when the child has been the subject of a full adoption by that spouse alone, and filiation has only been established with regard to that spouse;
when the parent other than the spouse has had parental authority totally withdrawn;
when the parent other than the spouse is deceased and has left no ascendants in the first degree, or when these ascendants have manifestly lost interest in the child.
The conditions are identical to those applicable to adoption by a married couple, apart from the condition relating to the age of the adopter and the age difference between the adoptee and the adopter, which is only ten years.
The parent whose filiation is established with regard to the child to be adopted must give his or her consent to the adoption before a French or foreign notary or before French diplomatic or consular agents.
At present, heterosexual and homosexual couples are not allowed to adopt their partner’s or cohabitee’s child.
This refusal is motivated by the fact that adopting the child of a partner or cohabitee would have the effect of transferring parental authority over the adopted child to the adopter, thereby forfeiting the rights of the biological parent.
The adopters/adopter and his/her spouse can choose to give the child both their names or the name of one of them.
They can request that the child’s first name be changed.
Dear users, on 15/06/2022 Internet Explorer will be retiring. To avoid any malfunctioning, we invite you to install another browser, such as Google Chrome, by clicking here, or the one of your choice.
Please check this before contacting us in the event of a problem.
