Adoption
Adoption is a legal arrangement in which, based on a court order, a legal bond is established between two people, with approximately the same consequences as an ordinary parentage bond. The adopting parent is called the adopter. The adopted child bears the name adoptandus. Adoption is actually a purely legal parentage because biological parentage is not determinative at all.
According to the Civil Code (article 343, § 2 old Civil Code), there are two types of adoption within Belgian law:
- regular adoption
- full adoption
Regular adoption
Regular adoption is possible with both a minor and an adult child. With regular adoption, the child retains the legal parentage link with its original parents. Moreover, a new parentage bond is also established between the adopting parent and the adopted child. The adopted child will be on an equal footing with any other descendants of the adopting parent. However, the adopted child will not acquire a lineage bond in relation to the remaining persons in the new family. For example, the adopted child will not legally be a grandchild of the adopting parent's parents. As a result, it is possible for the adopted child to inherit both from its original family, and from the adopting parent (Art. 4.12 Civil Code).
Regular adoption is revocable in case of very important reasons (Art. 354-1, 1st paragraph old Civil Code). No fault needs to be shown for this. Moreover, revocation must always take place in the interest of the child.
Full adoption
Full adoption is possible only as long as the child is a minor at the time of filing the application. In full adoption, the legal parentage link with the original family is severed. From a legal point of view, the child therefore only belongs to the new family, i.e. that of the adopting parents, as from the judgment. The child is, as it were, fully integrated into the new family (art. 356-1 Old Civil Code). Consequently, the adopted child can only inherit from this family.
The full adoption is in principle irrevocable (art. 356-4, 1st paragraph old Civil Code), however, revision is possible (art. 351 old Civil Code).
Joint provisions
Both regular and full adoption must always be based on lawful reasons. In addition, the adoption will only take place in the higher interest of the child and with respect for fundamental rights under international law (art. 344-1 old Civil Code).
These legitimate reasons are not specified in the law, but according to Supreme Court case law, they imply a double requirement:
- the intended adoption must not be contrary to public policy or other legal provisions of mandatory law
- the proposed adoption must not be diverted from its proper objective
- for example:
- endofamilial adoption: giving legal form to an existing factual (parenting) situation, such as adoption by the foster mother
- charitable adoption: incorporating the child into a new family, such as the adoption of an orphan child
- the adoption can be averted if e.g. the reason for adoption is to obtain a residence benefit or to give a child to a family instead of giving a family to a child
the adoption can be averted if e.g. the reason for adoption is to obtain a residence benefit or to give a child to a family instead of giving a family to a child
Adoption by a person with whom the child is related (e.g. the grandparent, aunt, (half-)brother, etc.), is possible and not prohibited by law. but case law does say that there must be exceptional circumstances to change the existing family order so radically. Only if that is the case is the requirement of lawful reason fulfilled.
Procedure
The procedure of both types of adoption is identical and can be instituted in the family court by application.
Stepparent adoption?
When the spouse of a parent, who may or may not still be alive, proceeds to adopt, this is known as stepparent adoption. We also speak of partner adoption when the legally cohabiting partner or de facto cohabiting partner proceeds to adopt his partner's child.