VfGH: Adoption also possible without a marriage license
court
A Salzburg district court had ruled that after the foster father, the foster mother was not also entitled to adopt a girl because the couple was not married. This legal interpretation is wrong, condemned the Constitutional Court (VfGH).
Marriage or registered partnership is not a requirement for joint adoption. This resulted from a VfGH finding published on Monday.
One woman gave up her child for incognito adoption. The girl, who lived with an unmarried couple as a foster child, was adopted by her foster father the previous year. When his partner also applied for adoption, this was rejected by the Zell am See (Pinzgau) district court.
When advertising on the ABGB (General Civil Code) one meant that only spouses or registered partners are allowed to adopt together and therefore partners are excluded from an adoption. A “stepchild adoption” is also ruled out because it is not about the adoption of the biological child of the third party applicant, i.e. the foster father, but of his adoptive child. The Austrian legal system does not provide for the adoption of an adopted child by a partner.
Family turned to a constitutional court
The VfGH, to which the family had turned, clearly rejected this. The district court misinterpreted the provision. This does not contradict joint adoption by life partners, ie it does not contradict Article 8 of the Convention on Human Rights as well as the principle of equality to generally exclude life partners from the possibility of (simultaneous or successive) adoption.
Decision now at the regional court
An adoption contract is to be approved if the adoption is in the best interests of the child and a relationship corresponding to the relationship between birth parents and children exists or should be established. The Salzburg Regional Court now decides on the woman’s acceptance in the ongoing appeal proceedings.