Constitutional Court ruling opens doors for double plus parent adoption.
11 October 2023
After a parental breakup, the father and mother often get to know a new partner, who in many cases also takes charge of raising and caring for the (sometimes still young) children. One forms a new family, with the plus father or plus mother in many cases building a good relationship with the plus children.
In practice, plus parents and plus children increasingly wish to have their good bond legally established as well. This not only has an emotional added value (from that moment on, one is officially “child of” and “parent of” and an adoptive parentage bond is created), but is also more favorable for the plus children’s inheritance arrangement. Indeed, in the division of inheritance, adoption makes all the difference. Children (biological or adopted) together automatically receive half of the estate. Plus children (who are not adopted) inherit at most the other half. Thus, if there are several plus children, they are at a disadvantage.
Plus parent adoption only possible by one plus parent
Until now, so-called plus parent adoption was only possible by one plus parent.
The law prevents double, cross-plus parent adoption on the father’s and mother’s side. The legislature decided to introduce this restriction at the time because people shuddered at the prospect of multi-parent adoption, as it was assumed that the more parents there were, the more conflicts could arise.
This restriction implies that if, for example, the plus father had adopted the plus children, it was then no longer possible for the plus mother to adopt.
One already senses that there can be no reasonable justification for this, especially when the plus children are already of age and conflicts of parental authority can no longer arise.
In 2022, two adult plus children went to the Constitutional Court for this, as they felt it was unfair that they could no longer be adopted by their plus father, given they had already been adopted by their plus mother.
The Constitutional Court ruled very clearly in its ruling of May 25, 2023 (No. 83/2023) that adult plus children should henceforth be able to be adopted by two plus parents because the restriction in the law is unreasonable and contrary to the Constitution.
New bill Geens
Following this Constitutional Court ruling, former Justice Minister Koen Geens has now also introduced a bill to make adoptions by plus-parents smoother.
Indeed, plus-parents and plus-children must be given the opportunity to formally recognize the lasting child-parent relationship they have, regardless of whether or not there has been a previous adoption on the other parent’s side.
The bill should make it possible for a child with a plus parent on both sides to be adopted by both plus parents.
In addition, the bill provides that in addition to adults, minors should now be able to be adopted by their plus parents, as more and more couples are divorcing young. Of course, the adoption of minors requires the consent of all concerned.
Currently, legislation prevents a second plus-parent adoption.
To eliminate this discrimination, pending a thorough reform of the law of descent, Geens wants to provide for an amendment to the (old) Civil Code to make this possible in the short term.
After a plus parent adoption, plus children are entitled to half of the plus parent’s estate along with all other children. This can now be done with both plus parents because of this Constitutional Court ruling. Through this ruling, the Court has clearly opened the door for more favorable inheritance arrangements for plus children.
Major plus children who wish to be adopted by a second plus parent can use the ruling as an instrument to legally enforce this.
Legislation must be amended, especially in times of ever more newly formed families.
The bill submitted by Geens is already a first step in the right direction. It would soon allow minors as well as adults to be adopted by both plus parents.
As a lawyer, we ensure that the petition is drafted, follow up the file from the preliminary investigations by the police, during the hearings until after drafting of the adoption certificate.
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