Adopting a child in Tunisia: conditions, procedure and legal effects
Topic: Family law
Adoption in Tunisia under Law 58-27 of 1958: who can adopt, the procedure before the district judge, effects on name and inheritance, and kafala.
In short: Tunisian law allows full adoption: Law No. 58-27 of 4 March 1958 on public guardianship, unofficial guardianship (kafala) and adoption puts an adopted child on the same footing as a legitimate child: the child takes the adopter's surname and has the same rights and duties, inheritance included. The adoption judgment is given by the district judge (juge cantonal) after checking the legal conditions and the parties' consent. What adoption gives the child and the family A stable family recognised by law: the adopter has the same rights and duties towards the child as legitimate parents, and the law makes no provision for revoking an adoption. The family name: the child takes the adopter's surname; the first name can be changed at the adopter's request, as recorded in the judgment. Inheritance: the adopted child has the same rights as a legitimate child and so inherits from the adopter like any other child. Clear civil status: an extract of the judgment is sent to the civil registrar within thirty days and noted in the margin of the child's birth certificate. Who can adopt? An adult man or woman who is married, has full legal capacity, is of good character, sound in body and mind and able to provide for the child. The judge may waive the marriage requirement for a widowed or divorced person when the child's interest requires it. The adopter must be at least fifteen years older than the child, unless the child is the spouse's child. The adopter's spouse must consent. The child must be a minor. The procedure The district judge gives the adoption judgment in chambers, in the presence of the adopter and spouse and, where relevant, the child's parents, a representative of the public guardian or the unofficial guardian. The judge checks that the legal conditions are met and that the parties consent; the judgment is final. Often the child has no family support and has been placed in an institution by the family judge. The director of that institution is then the child's public guardian, with the same rights and duties as parents, and a representative attends the adoption hearing. Kafala (unofficial guardianship): an alternative that keeps the child's filiation Kafala is a contract by which an adult with full legal capacity, or a welfare organisation, takes a minor into their care, has custody and provides for the child's needs. It is signed before a notary between the guardian and the child's parents, or one of them if the other is unknown or dead, or failing them the public guardian, and then approved by the district judge. The child keeps their filiation, surname and inheritance rights in their birth family. Kafala ends when the child comes of age; the court of first instance can end it earlier at the request of the guardian, the parents or the public prosecutor, in the child's interest. Protecting the child after adoption If the adopter seriously fails in their duties, the court of first instance can, at the public prosecutor's request, take custody away and give it to someone else in the child's interest. Where the birth parents are known, the marriage prohibitions of the Personal Status Code continue to apply towards the birth family. Tunisians abroad and foreigners A Tunisian may adopt a foreign child. Under the Private International Law Code, the conditions of adoption are governed by the law of the adopter and the law of the child, each as regards that person; its effects are governed by the adopter's national law and, for spouses of different nationalities, by the law of their common domicile. Kafala follows the same rules. An adoption with a foreign element therefore means checking the law of both countries: see a lawyer before starting any procedure. This article gives general information and does not replace advice from a lawyer who looks at your own situation.
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