As part of the fight against the spread of the COVID-19 virus, the Government has decided to suspend the time limits in jurisdictional matters as well as to adapt certain other procedural modalities.
Simple adoption is the creation, by court order of a parent-child relationship (or filiation) between 2 persons (the adopter and the adoptee).
It enables adopted persons to retain all of their rights and obligations in their family of origin, including hereditary rights.
In cases where a minor is adopted, the process differs depending on whether the prospective adopters have or have not yet collected the future adoptee for adoption.
Who is concernedSimple adoption is open to domestic or foreign residents of Luxembourg.
The conditions required to proceed with a simple adoption are governed by the national law of the adoptive parents' country of nationality. If the adoption is made by a married couple of different nationalities or if both or one of the spouses is a stateless person, the applicable law is that of their usual shared place of residence at the time of the application.
The conditions required to be adopted are governed by the national law of the adoptee, unless the adoption causes the adoptee to acquire the nationality of the adopter, in which case the conditions are governed by the national law of the adopter.
In case of conflict between the rules of competence laid down by the adopter’s national law and those laid down by the adoptee’s national law, the adoption is validly concluded in accordance with the rules laid down by the law of the country where the adoption took place and before the competent authorities under that same law.
In Luxembourg, simple adoption can only take place if there are strong grounds and if it offers advantages for the adoptee.
Age requirements according to Luxembourg law
In Luxembourg, simple adoption can only take place if the adopter(s) and the adoptee satisfy specific age criteria.
For the adopter(s)
When an application for simple adoption is submitted by 2 spouses who have not been legally separated, one of the spouses must be over the age of 25 while the other must be at least 21 years old.
Unless there are strong grounds to permit otherwise, the adoptive parent must be at least 15 years older than the child.
When an application for simple adoption is submitted by one spouse in respect of the other spouse’s child, no specific age requirement applies to either spouse. However, the adoptive parent must be at least 10 years older than the future adoptee, unless there are strong grounds to permit otherwise.
For the adoptee
In all cases, the future adoptee must be at least 3 months old and cannot have reached 16 years of age.
The spouse of the married and non-separated adoptive parent must consent to the adoption.
Where the parentage of a minor is established with respect to their father and/or mother, the parent(s) must consent to the adoption. If they are deceased, unable to express their will or have lost their rights of parental authority, consent is given by the family council after receiving advice from the person caring for the child.
Persons whose consent is required for the adoption may not unreasonably withhold consent. The court may, if necessary, be asked to disregard the refusal and to pronounce the adoption.
If the adoptee is married, their spouse must consent to the adoption, unless that spouse is unable to express their will or is legally separated from the adoptee;
Adopted persons over 15 years of age must personally consent to their adoption.
How to proceed
In most cases, adoption concerns people already known (pre-existing family ties) or/and already taken into care.
Future adopters must enlist the services of a lawyer at Court who will submit a petition for a simple adoption at the District Court (tribunal d’arrondissement).
A simple adoption petition addressed to the district court must be countersigned by the adoptive parent(s), the adopted child if they are over 15, and the persons whose consent is required.
The petition and the supporting documents are submitted to the state prosecutor, who issues a written opinion.
The examination of the petition and the hearing take place in court chambers and are attended by a prosecutor from the public prosecutor’s office.
The decision approving simple adoption shall mention the family name and the first name(s) to be used by the adoptee.
A motion to set aside may not be brought against the judgement of the district court by anyone who failed to appear at the hearing.
An appeal may be lodged by the state prosecutor as well as by any party to the proceedings, even if not present at the hearing, within a period of 40 days from the date of the reading of the judgement for the prosecutor and from the date of notification for the other parties.
No motion to set aside may be brought against a decision handed down on appeal by the Court of Appeal.
An appeal on points of law to the Court of Cassation is possible in the form and within the deadlines laid down by law for appeals in civil and commercial matters. The execution of the judgement is suspended in this case.
Transcription of the judgement or decision approving simple adoption
The judgement or decision is transcribed into civil registry of the adoptee’s place of birth.
If the place of birth is outside Luxembourg or if it is unknown, the transcription is made in the civil register of Luxembourg City.
A marginal entry regarding the decision is added to the adoptee’s birth certificate and marriage certificate, if already married, as well as on any legal instruments relating to the civil status of the adoptee’s legitimate descendants born before the adoption.
Procedure in the event of the adoptive parent's death
During the adoption process
If the adoptive parent dies after the filing of the petition, the proceeding shall be continued at the initiative of the adoptee if they are over 15 years of age at the time of death. However, if the adoptee under 15 is the adoptive parent's illegitimate child, the proceedings shall be continued at the initiative of the public prosecutor.
After the judgment
A new adoption may be ordered either after the death of one or both of the adoptive parents or after the death of one of the two adoptive parents if the application is made by the new spouse of the surviving prospective adoptive parent.
It is possible to apply for revocation of the adoption on very serious grounds.
This application shall be brought before the court by:
- the adoptive parent;
- the adopted child; or
- the public prosecutor's office.
If the adopted child is over 15 years of age, they may personally and without assistance request revocation or be the defendant in an application for revocation.
If they are under 15 years of age, the application is lodged by or against the public prosecutor.
The judgment pronouncing the revocation shall be subject to appeal by the public prosecutor and the parties concerned.
It is transcribed into the civil registers of the commune where the adoption order is registered.
The decision to revoke shall terminate all effects of the adoption from the date of the legal action, except with regard to the prohibitions on marriage into the adoptive family and certain inheritance rights.
Steps after adoption
After the adoption, the adoptive parents must:
- declare the adopted child with the commune of residence;
- request that the adopted child be added to their family record book, if such a book exists;
- request the enrolment of the adopted child with the National Health Fund (Caisse nationale de santé - CNS);
- declare the adopted child with the Children's Future Fund (Caisse pour l'avenir des enfants - CAE) in order to apply for any family benefits and maternity allowances for which they are eligible;
- request a health record book for the adopted child from the child’s paediatrician.
Entitlement to leave for adoption
Where applicable, adoptive parents may qualify for the following types of leave:
Effects of simple adoption
The adoption takes effect from the date when the proceedings were brought.
Adopted children become members of their adoptive families and do not break their ties with their original family, in which they retain all of their rights, including hereditary rights.
The family relationship resulting from the adoption extends to the descendants of the adopted child.
The adoptive parent is the only one vested, with respect to the minor adopted child, with all parental authority rights, including administration of property and consent to the adopted child's marriage.
Prohibitions on marriage
In their family of origin, adopted children cannot marry an ascendant or descendant, a relative by marriage in the same line, their brother or sister, a relative by marriage of the same degree, their uncle or aunt, nephew or niece, unless the Grand Duke, for exceptional reasons, grants a dispensation.
In the adoptive family, marriage is prohibited between:
- the adoptive parent, the adopted child and their descendants;
- the adopted child and the spouse of the adoptive parent and between the adoptive parent and the spouse of the adopted child, unless the Grand Duke grants a dispensation for serious causes or if the person who created the relationship by marriage has died;
- the adoptive children of the same person, between the adopted child and the children of the adoptive parent, unless the Grand Duke, for serious causes, lifts the prohibition.
Effect on the adoptee’s surname and first name
The adoptee takes the surname of the adopter.
If the adoption is requested by a married couple, the surname is determined by the principle of a single surname for all children of both adoptive parents.
If the adoptive parent is married, the court may decide with the consent of the adoptive parent's spouse that the spouse's surname be given to the adopted child, either by replacing their surname for that of the adoptive parent or by adding it to the adoptive parent's surname in the order chosen by the spouses, with only one surname allowed for each of them.
If the adoptive parent is the spouse of the adopted child's parent, the adoptive child retains their surname, but the court may also give them the surname of the adoptive parent and/or their spouse. If the adopted child is over 13 years of age, they must consent to it personally.
The adoptee’s first names can be changed by the court at the request of the adoptive parent(s).
Adoptees and their descendants owe support to adoptive parents if they are in need, and adoptive parents owe support to adoptees and their descendants.
If an adopted child dies without descendants, their heirs will owe support to an adoptive parent who is in need.
The obligation to provide support remains between the adoptee and their birth parents. The birth parents are, however, required to provide support only if the adopted person cannot obtain it from the adoptive parents.
Effects pertaining to inheritance
Adopted children and their descendants have the same inheritance rights in the adoptive family as legitimate children; however, they do not have the status of forced heir (an heir for whom the law reserves an inalienable share of an inheritance) to the ascendants of the adoptive parent.
If the adopted child dies without descendants or a surviving spouse, the assets given by the adoptive parent or amassed in their estate shall be returned to the adoptive parent or their descendants to contribute to the debts, subject to the rights acquired by third parties. The surplus of an adopted person's assets belongs to their own parents.
If, during the lifetime of the adoptive parent, and after the death of the adopted child, the children or descendants left by the adopted child die without leaving any descendants of their own, the adoptive parent inherits the assets legated to them, but that right belongs only to the adoptive parent personally and may not be passed on to their heirs, even in the descending line.
Impact on nationality
If an adoptive parent is a Luxembourg national, an adopted minor child automatically obtains the Luxembourg nationality.
If the adoptive parent in respect of whom the parental relationship is established obtained the Luxembourg nationality as a result of the acquisition or reacquisition of the Luxembourg nationality by this individual’s own biological or adoptive parent, the adopted minor child also acquires the Luxembourg nationality.
If the adoptive parents are of different nationalities but at least one of them has Luxembourg nationality, the adopted child acquires Luxembourg nationality and may also acquire the nationality of the other adoptive parent if eligible, as Luxembourg law allows for dual nationality.
If the adoptive parent is not of Luxembourg nationality, the national provisions of the nationality law applicable to the adoptive parent shall hold true.
Who to contact
Luxembourg and Diekirch Bar