Kaufhold & Réveillaud supports the fight against homophobia and transphobia and takes this opportunity to get back on the right of adoption for homosexual couples in Luxembourg.
Enjoy the reading!
The Luxembourg courts may be seized of an adoption application when:
– the adopter(s) reside(s) in the Grand Duchy of Luxembourg,
– the adopter(s) reside(s) abroad if the person whose adoption is sought resides in the Grand Duchy of Luxembourg.
The conditions for adoption are subject to the national law of the adopter(s).
In case of adoption by two spouses of different nationalities, the applicable law is the law of their common habitual residence at the time of the application.
The conditions for being adopted are subject to the national law of the adopted person, except if 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 subject to 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 the law of their common habitual residence at the time the adoption took effect.
The adoption procedure is initiated by a petition before the district court, drafted by a lawyer and signed by the adopter(s), and the adopted person if he or she is older than fifteen years.
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’s Office, into the civil status registers of the adopted person’s place of birth, or of the City of Luxembourg if the adopted person was born abroad or if the place of birth is unknown.
In a simple adoption, the adoption has the effect of adding a parent-child relationship to the pre-existing one.
The adopted person remains in his or her family of origin and retains all his or her rights and obligations, including hereditary rights.
In the case of a full adoption, the parent-child relationship established by the adoption replaces the original parent-child relationship and the adopted person ceases to belong to his or her family by blood.
The adoption confers on the adopted person and his descendants the same rights and obligations as if he had been born of the marriage of the adopters.
Simple adoption is revocable, unlike full adoption.
Article 349 of the Civil Code specifies that an adoption by more than one person is only permitted if they are both spouses.
Therefore, two unmarried persons cannot proceed with an adoption together.
Since the law of July 4, 2014 came into force, Article 143 of the Civil Code allows persons of the same sex to marry. Therefore, 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 twenty-five years old, the other spouse at least twenty-one years old;
– the adopters must be at least fifteen years older than the child they intend to adopt;
– in the case of a full adoption, the child to be adopted must be under sixteen years of age;
– the 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 older than 15 years, he/she must consent to the adoption;
– the adoption can only take place if there are good reasons and if it is beneficial to the adopted person.
The reference to “spouses” in the Civil Code excludes partners bound by a registered partnership (amended law of July 9, 2004) and cohabitants from exercising the right of adoption.
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 proceed with the simple or plenary adoption of the child of the other member of the couple provided that they are married.
The conditions applicable to this type of adoption are identical to those mentioned above for adoption by a couple, except that there is no age requirement for the spouses and the age difference between the adopter and the child is only ten years.
As of today, the adoption of the child of one’s partner or cohabitant is not allowed, whether for a heterosexual or homosexual couple.
This refusal is motivated by the fact that the adoption of the child of one’s partner or cohabitant would have the effect of transferring the parental authority over the adopted child to the adopter, thus causing the biological parent to lose his or her rights.
The adopters/adopter and his/her spouse may choose to give the child both their names or the name of one of them.
They may request a change in the child’s first name.
Article 346 of the Civil Code specifies that an adoption by more than one person is only allowed if they are two spouses.
Therefore, two unmarried persons cannot proceed together with an adoption.
Since the law of May 17, 2013 came into force, people of the same sex can get married, so they can since then also proceed to an adoption 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
– the adopters must be at least fifteen years older than the child they intend to adopt;
– in the case of a full adoption, the child to be adopted must be under fifteen years of age;
– the child must have been 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 years of age, he/she must consent to the adoption.
The wording of the Civil Code, by providing for adoption by spouses, excludes the possibility for an unmarried couple (homosexual or heterosexual) to adopt together in the simple or plenary form.
Simple or plenary adoption of the spouse’s child is provided for by the Civil Code.
The plenary adoption of the child of the spouse is allowed :
– when the child has a legally established filiation only with respect to the spouse;
– when the child has been the subject of a full adoption by this spouse alone and has filiation established only with respect to him/her;
– 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 they have clearly lost interest in the child.
The Civil Code provides for the simple or full adoption of a spouse’s child.
The plenary adoption of the child of the spouse is allowed :
– when the child has a legally established filiation only with respect to this spouse ;
– when the child has been the subject of a full adoption by this spouse alone and has filiation established only with respect to him/her;
– 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 they have clearly lost interest in the child.
The conditions are identical to those applicable to adoption by a married couple, except for the condition related to the age of the adopter and the difference in age between the adoptee and the adopter, which is only ten years.
The parent whose filiation is established with respect to the child to be adopted will have to give his consent to the adoption before a French or foreign notary or before French diplomatic or consular agents.
At the present time, the adoption of the child of one’s partner or cohabitant is not allowed, whether for a heterosexual or homosexual couple.
This refusal is motivated by the fact that the adoption of the child of one’s partner or cohabitant would have the effect of transferring parental authority over the adopted child to the adopter, thus causing the biological parent to lose these rights.
The adopters/adopter and his/her spouse may choose to give the child both their names or the name of one of them.
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