What are the conditions for adoption?

1. Age requirement

To adopt, the adopter must be at least 25 years old and at least 15 years older than the child one wishes to adopt (art. 345, 1st paragraph old Civil Code). 

If one wishes to adopt a child with whom one is related in the first degree or an (adoptive) child of the partner (spouse, legal or de facto cohabitant) or ex-partner, it suffices that the adopter is at least 18 years old and at least ten years older than the adoptee (art. 345, 2nd paragraph old Civil Code). 

The adopter must be this age at the time of filing the petition for adoption (art. 345, 3rd paragraph old Civil Code).

No minimum age is provided for the adoptee, but the child must ‘exist’ at the time of the adoption petition. In other words, the child must have been born alive and viable. However, full adoption is only possible while the child is still a minor (art. 355 old Civil Code). Once the child is 18 or older, only regular adoption is still possible. 

2. Suitability condition

When one wishes to adopt a child, one must be suitable and competent to do so. Therefore, one will check that the adopter has the necessary socio-psychological qualities (art. 346-1 old Civil Code).

To prove this, the adopter will have to be able to present a suitability judgment proving their suitability and competence (art. 346-1/1, 1st paragraph old Civil Code). To obtain this, the adopter will have to go through a social examination, morality examination and preparation process (art. 346-1/2 and 346-2 old Civil Code). 

For a detailed explanation on how to obtain this judgment and the procedure surrounding it, please refer to the following Wanted Wiki: How do I obtain a suitability judgment?

3. Condition of consent

Both the adopter and the adoptee must consent to the adoption. If the child is 12 years old at the time of the judgment, he can consent to the adoption himself. If he refuses his consent, no adoption will take place either. In other words, he has a right of veto. However, if the court considers that the child is incapable of will or lacks sufficient discernment, then consent cannot be given himself (art. 348-1 old Civil Code).

There are also other persons who may have to give consent, such as the parents. If parentage is established on both the mother's and father's side, then both must give their consent. If one of the parents is absent or the filiation is established along one side only, only that parent has to give his consent (art. 348-3 old Civil Code). Parents cannot give their consent for adoption until two months after the birth of their child (art. 348-4 old Civil Code).

If no parentage has been established or the only parent has died (or is absent, incapacitated, etc), consent will be given by the guardian. If the guardian himself wants to adopt the child, consent will be given by the supervising guardian (art. 348-5 old Civil Code).

If the adopter is married, legally or de facto cohabiting, his spouse or partner will also have to consent to the adoption (art. 348-2 old Civil Code).

4. Lawful reasons

It is not the intention that an adoption can take place for the slightest reason. Here, the best interests of the minor child will always come first. Thus, an adoption of a minor will only be possible if he has no other care option. In addition, the adoption must have a legitimate reason. For example, it will not be allowed if its sole purpose is to provide inheritance benefits or if its sole purpose is to regularise the situation of residence in the territory. The judge will also have to consider the interests of other persons in his assessment, e.g. the children of the adopter, the child's grandparents, etc.

Extra

It is possible to adopt alone or with two people. When two people adopt, it does not matter whether they are married, legally or de facto cohabiting. If two spouses adopt, there are no additional conditions attached. De facto cohabitants, on the other hand, must live together in a steady and affectionate manner for at least three years when applying for adoption. Also, there cannot be a marital impediment due to blood relationship between legal and de facto cohabitants that cannot be lifted by the family court (e.g. brother and sister). This does not require both persons to be of different gender. Thus, the adoptee, but also more broadly any child, can have two legal fathers or two legal mothers. 

Moreover, the death of one of the adoptees, after the petition for adoption has been filed but before the deed of adoption has been drawn up, will not cause the adoption to cease. The adoptee or the other adopter can still apply to continue the proceedings.

However, adoption is not possible when the adopter and the adoptee are too close. For example, a spouse, legal or de facto cohabitant cannot adopt his spouse or partner.