April 19th, 2019
Published on January 16th, 2015 | by Aimilios Koronaios0
Greek Case Law: Judgment Nr. 1960/2013 – International adoption of a Bulgarian child
Thessaloniki Multi-member Court of First Instance – Judgment Nr. 1960/2013 – Judgment Summary – International adoption of underage child
By: Aimilios Koronaios
Keywords: International adoption of underage child – International jurisdiction – Applicable law – Public policy
Court: Thessaloniki Multi-member Court of First Instance
Judgment Nr. 1960/2013
Source: Legal Database ISOCRATES
A. The facts
The case dealt with the petition of a Greek couple, requesting the adoption of a Bulgarian underage child, whose mother was Bulgarian and who had been born out of wedlock.
B. The legislative provisions
Articles 3 par. 1, 337, 714, 800 par. 1 Greek Code of Civil Procedure (CCP), articles 23 par. 1, 33 Greek Civil Code (CC)
- International adoption – International jurisdiction
The Court ruled that its international jurisdiction was based on articles 3 par. 1, 800 par. 1 CCP.
- International adoption – Applicable law
The Court said that the substantive requirements of the international adoption are governed by the law which is provided by article 23 par. 1 CC, where the connecting factor of each party’s nationality is used.
Therefore, it ruled that the substantive requirements related to the applicants, who were Greek nationals, were governed by Greek law, while the substantive requirements related to the adoptee, who was Bulgarian national, were governed by Bulgarian law. Furthermore, the Court held that it was obliged to apply the Bulgarian law of its own motion, in accordance with articles 337, 741 CCP.
- Bulgarian law – Full and simple adoption – Procedure
The Bulgarian law provides for two different types of adoption, the full adoption and the simple adoption. The full adoption is a type of adoption, where the adoptee is fully assimilated to a legitimate child, concerning the whole family of the adoptive parent, while the simple adoption is a different type, where the opposite applies.
Furthermore, in accordance with the related provisions of the Bulgarian law, when a Bulgarian underage child is to be adopted: a) the consent of the competent Bulgarian authority is compulsory, b) the Bulgarian courts have exclusive international jurisdiction.
- International adoption – Public policy
The Court said that if the application of a foreign law provision is considered to be contrary to the public policy of article 33 CC, the appropriate provisions of the lex causae shall apply in its place, otherwise the appropriate provisions of the lex fori.
Moreover, it ruled that the application of the Bulgarian law provisions concerning simple adoption was contrary to the public policy of article 33 CC. In this context, it accepted that in Greece the institution of adoption aims at the full assimilation of the adoptee to a legitimate child, which is why the Greek law provides only for the full adoption. In conclusion, the Court decided that these provisions of the Bulgarian law could not apply.
Finally, it also ruled that the aforementioned provisions of the Bulgarian law about the compulsory consent of the competent Bulgarian authority and the exclusive international jurisdiction of the Bulgarian courts were not applicable, in accordance with article 23 par. 1 CC, since they did not concern matters of substance but matters of procedure.