In the case of the adoption of an adult, the adoptive parent’s child’s refusal is binding
The Constitutional Court upholds the veto power of adult children in the interests of safeguarding existing family ties
Key points
The refusal of the adopter’s adult child to consent to the adoption of an adult is binding. This was decided by the Constitutional Court, upholding the provision which prevents the court from overruling the refusal expressed by a child over the age of 18. The Constitutional Court has thus rejected the question of constitutionality raised by the Court of Imperia regarding Article 297, second paragraph, of the Civil Code. According to the judges, the different treatment provided for in comparison with other parties involved in the procedure does not violate the principle of equality enshrined in Article 3 of the Constitution.
The case stems from the rules governing the adoption of adults, which require not only the consent of the adopter and the adoptee, but also the assent of a number of directly interested parties. These include the spouse who is not legally separated from the adopter and the adoptee, the parents of the adoptee and, by virtue of previous rulings by the Constitutional Court itself, also the adopter’s adult children. The legislation also stipulates that, should the objection to the adoption come from a spouse who is not legally separated but does not live with the adopter or the adoptee, and should this objection be deemed unjustified or contrary to the interests of the adoptee, the court may nevertheless authorise the adoption. This possibility does not, however, apply when the objection is raised by the adoptive parent’s adult child.
The decisive role of the son
It was precisely this distinction that had been challenged by the Court of Imperia, which held that the judge should have been able to assess also the refusal of the adult child and, if this lacked adequate grounds, override it in the interests of the adoptee. The Constitutional Court, however, ruled out the existence of unequal treatment between comparable situations. In the grounds for the judgment, the judges emphasised that the criterion of cohabitation takes on a profoundly different meaning in marital relationships compared with those of parent-child relationships. In marriage, in fact, cohabitation constitutes one of the obligations arising from the marital bond. The absence of cohabitation, unless temporary or justified, may indicate a crisis in the material and spiritual bond between the spouses and may even foreshadow the dissolution of the marriage. The position of an adult child is different.
Safeguarding existing emotional relationships
In the relationship between a parent and an adult child, living together is not an essential element of the family bond. The parent-child bond continues to exist regardless of whether or not the children live with the parent, and it does not cease even in the event of a deterioration in personal or emotional relations. Hence the Constitutional Court’s conclusion: the legislature has legitimately assigned the adult child a decisive role in the formation of the new adoptive relationship, without allowing the court to override the child’s wishes.
The Court also addresses the issue of the evolution of adoption of adults, an institution which case law has interpreted in an increasingly open manner in recent decades, emphasising its function of legally recognising established emotional and social relationships. This development, however, does not require the weight given to the consent of the adopter’s children to be disregarded.
