Adoption by a Single Spouse

Facts

Applicant A.X. requested the adoption of child Y. whom she had taken in with her spouse B.X. in 1985. Although the X. spouses had been living separately since 1988, the administrative court of the canton of Fribourg rejected A.X.'s request for individual adoption on the grounds that the conditions of Art. 264b para. 2 CC were not met, as the legal separation pronounced under Art. 147 para. 1 CC must have lasted for more than three years.

Considerations

The Federal Court upheld the judgment of the administrative court. It considered that according to the wording, meaning and genesis of Art. 264b para. 2 CC, adoption by a spouse living separately is only possible in the case of legal separation pronounced for more than three years under Art. 147 para. 1 CC. The mere fact of living separately, even by court order, is not sufficient to meet this legal condition.

The Court rejected the applicant's argument that this formal interpretation would deprive the innocent spouse of the possibility of adopting. It considered that the interests of the innocent…