The conditions for simple adoption in France with an extraneity element

The conditions for simple adoption in France with an extraneity element

The foreign factors to consider in an adoption are those relating to the nationality of the adopted person or the adoptive parent, or the place of the adoption. The conflict-of-laws rules relating to filiation were introduced by the French legislator in 1972 but did not include filiation by adoption. It was not until the Act of 6 February 2001 on international adoption that new articles, numbers 370-3 and 370-5, were introduced into the Civil Code.

a) Conditions relating to the adoptive parent

The first paragraph of article 370-3 of the Civil Code specifies two criteria for establishing a relationship: the national law of the adoptive parent or the effects of the marriage. Where a single person wishes to adopt, their national law will apply.

Once their national law has been determined, it is necessary to check whether it can be overruled by the French courts. Public policy exception is limited by the wording of article 370-3 of the Civil Code, which states that if the law of the adoptive parent prohibits adoption, it cannot be granted. Some jurisdictions that allow adoption prohibit the adoption of adults.

Thus, in French law, the simple adoption of a child by the second spouse of one of the parents is often used. For a British person wishing to adopt, the law applicable to this adoption is the law of the adoptive parent, i.e. English law.

But English law prohibits the adoption of an adult and does not recognise simple adoption. Adoption will therefore not be possible. However, if you had dual French and British nationality, the adoption could be carried out under French law, since the law relating to the adoptee would be irrelevant.

b) Conditions relating to the adopted person

Simple adoption is permitted regardless of the age of the adopted person: they may be a minor or an adult, but they must give their consent if they are over 13 years of age, in accordance with paragraphs 1 and 4 of article 360 of the Civil Code.

The simple adoption of an adult child does not require the consent of the parents

The effects of a simple adoption

a) Surname and first name of the child

In principle, the adopted person keeps their original surname, to which the surname of the adoptive parent is added (if the adopted person is an adult, this addition requires their consent).

However, the court may, at the request of the adoptive parent and with the consent of the adopted person if they are over 13 years of age, decide that the adopted person will bear only the surname of the adoptive parent

At the request of the adoptive parent(s), the court may also change the child's first name (art. 361 of the Civil Code, which refers to paragraph 7 of art. 357 of the Civil Code).

b) Maintenance obligation

Simple adoption creates a maintenance obligation between the adoptive parent and the adopted person and vice versa. The biological parents also have the same obligation, but only if the child can prove that they were unable to obtain support from their adoptive parents.

c) Inheritance rights

The adopted person can inherit from both families: from their original family and from their adoptive parents, in the same way as a biological child. With regard to transfer duties, a child who has been the subject of a simple adoption does not, in principle, benefit from the rates and allowances for lineal descendants with regard to their adoptive parents. However, there are exceptions to this principle.

In fact, the law provides for several exceptions to this principle, the applicable regime being that of transfers between lineal descendants. This is the case for example:

For children (and their descendants) from a first marriage of the spouse of the adoptive parent, which also includes any children previously adopted (full adoption) by the spouse of the simple adoptive parent, and those born from any other relationships (out of wedlock) of the spouse of the adoptive parent.

Conclusion

Simple adoption must fulfil several conditions, that must be applied so that the adoption granted cannot be invalidated. The principle condition being the law applicable to the adoption. Under current French legislation, a British citizen cannot adopt an adult or child. The recent Act reforming adoption in France does not amend any of the national rules.