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| Ministry of Justice State Secretary of Justice
Registry and Notary Department No. Ref. 6.2.2.1 - 1000/2004 Matter: Adoption (Stamp: Ministry of Justice: General Registry - 21st. of October, 2004) In reply to your request for information regarding the adoption of a Colombian minor in Spain by two foreigners, this Department informs as follows: On consideration of the current drafting of article 9 (5) of the Civil Code, it is clear that adoptions formalised overseas are fully valid for the purposes of Spanish law provided they satisfy the conditions specified therein, namely: 1. The adoption must be duly constituted by the 'competent' overseas authority, which is determined according to the criteria for the attribution of competence of Spanish judges set out in the Organic Law of Judicial Power: 2. Application on the part of the overseas authority of the terms of the national law of the adopted party regarding capacity and required consents, along with the requirements imposed by its internal laws; 3. Moreover, it is also necessary to have the prior consent of the Spanish public authorities where the adopting party is Spanish and has resided in Spain; 4. Finally, the adoption may not be contrary to Spanish public order. The peculiarity of the case under consideration is that the consent of the Spanish public authorities refers to Spanish citizens, whereas both adopting parties have foreign nationality, namely British and Irish. This raises the question whether the personal law applicable to the adopting parties establishes different criteria regarding the certification of suitability and capacity to adopt. It is true that the Spanish legal regime as embodied in Article 9(5) above establishes that in the event of a conflict of laws in the field of adoption law the determining body shall be the authority with competence to constitute the adoption. This implies the application of the internal law of the state of origin of that authority according to the maxim "auctor regit actum", which also supposes the application of the law of the adopted party when, as is frequently the case, that party has the nationality of the State of origin of the authority which constitutes the adoption. This conclusion is reinforced by the amendment made by Law 11/1990 regarding the error in the drafting of the above-mentioned law brought about by the previous Law 21/1987. In paragraph 4 where it stated 'law of the adopting party', it has now been restated as being the 'law of the adopted party', correcting the obvious error made during the process of drafting the law. Accordingly, despite the legal loophole which exists, this body does not consider as decisive the fact that the certificate of suitability has been issued by the competent authorities of the Andalusian Autonomous community regarding foreign adopting parties as opposed to Spanish adopting parties, although this would have raised a problem prior to the above-mentioned legal reform (Resolution of the Registry and Notary Department of 9 February, 1989 regarding adoption by Spanish citizens in overseas countries). As regards the regime for the authorisations of entry and residence in Spanish territory of the minor adopted, under the terms of Royal Decree 737/1995 of 5 May as amended by Royal Decree 178/2003 regarding entry, residence and work in Spain of Members of the European Union and other States party to the Agreement Regarding the European Economic Space, the extension of the authorisation regime for entry into Spanish territory applicable to citizens of member states of the European Union in favour of their respective family members requires certification of the family relationship by means of the documents issued by the competent authorities, in this case the adoption papers. Such relationship may not be established by means of registration of the adoption in the Spanish Civil Register given that in the case under consideration neither the adopted party nor the adopting parties are Spanish, and neither the adoption nor the birth of the adopted party has taken place in Spain (Article 16 of the Civil Registry Law and Article 68 of the Civil Registry Regulations). Accordingly, certification of the relationship is required of the adopting parties, supposing that the child adopted shall assume the nationality of the adopting parties, according to their respective national legislation. This does not rule out the possibility of obtaining a 'certificate of compliance' of the adoption with the terms of the Hague Convention of 19 May 1993 regarding protection of the child and co-operation regarding international adoption in the State constituting the adoption. Where both the 'State of Origin' and 'Receiving State' are parties to the Convention, the adoption is fully recognised in states parties to the Convention in accordance with article 23 of the same and the adopted party is entitled to the guarantees regarding departure from the State of Origin and entry in the Receiving State established in article 18 of the Convention. This regime is applicable in the present case, given that both the state of origin and receiving state (Colombia and Spain respectively) have ratified the treaty, its terms being applicable since 1 November 1995 and 1 November 1998 respectively. Managing Director Pilar Blanco-Morales Limmones Ministry of Justice |
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