Adoptio imitatur naturam: the Barcelona appeal court allows the adoption of an adult son by the man who acted as his father from earliest childhood
The “Audiencia Provincial” of Barcelona, the provincial appeal court, allowed the appeal brought by this firm and constituted the adoption of an adult in favour of the man who had been his father since he was less than a year old. The court of first instance had refused it on the ground that the statutory requirement of uninterrupted cohabitation was not met.
The facts matter more than usual here, because the legal characterisation depends entirely on them. The adoptee was born in 2000. His biological parents separated de facto barely a few months later, when he was not yet a year old, and the divorce was formalised by judgment in 2002. The biological father moved abroad and disappeared from the lives of his two children. This is not one party's view of things. It was he himself who, years later, brought a claim seeking the termination of his maintenance obligation, relying precisely on the absence of any relationship with them, a termination he obtained by judgment in 2023. In 2001, the same year as that separation, the mother began living with the man who would later be the adopter. The two children were then four years old and one. In 2003 a third child was born, the couple's own, and in 2004 they married. For the next fourteen years there was one father in that house, and he was not the biological one.
The couple divorced in 2015. But, and this fact would prove decisive, the adopter did not leave the family home when the divorce came. According to the “empadronamiento”, the municipal population register, he did not move to his new home until November 2018, that is, two months after the elder son turned eighteen. And not even then did the relationship break down. The three siblings went on staying with him on alternate weekends, on Wednesdays and during the holiday periods, under the same contact arrangements laid down for the couple's own son, sharing trips, graduations and all the other important moments in the lives of every one of them.
The adoption was sought by the adopter and the adoptee. It was consented to by the biological mother and by the adoptee himself, who was already of age. The biological father's consent was not required and he did not object.
That fact is worth keeping in mind, because it defines an unusual procedural situation. These were non-contentious proceedings, an “expediente de jurisdicción voluntaria”, in which no one was opposing. There was no opposing party and no dispute between private parties. Once the appeal had been brought, it was served on the “Ministerio Fiscal”, Spain's public prosecution service, so that it might object to or challenge the decision in so far as it was unfavourable to it. Instead of objecting, it joined the appeal and likewise asked that the adoption be constituted. The only thing standing between that family and legal recognition of what was already a settled fact was the reading the court gave to a single line of one article.
2.Article 235-33
Article 235-33 of the “Código Civil de Cataluña”, the Catalan Civil Code, provides that a person who is of age or emancipated may be adopted only if he has lived uninterruptedly with the adopter since before reaching the age of fourteen, or if he has been in pre-adoptive foster care for at least the six months immediately preceding his coming of age or emancipation, and has continued to live with him without interruption.
The provision is worth reading slowly, because the whole dispute lies in its last line. The rule sets out two alternative routes, cohabitation from before the age of fourteen and pre-adoptive foster care before coming of age. And it then adds a rider, that cohabitation must have continued without interruption. The question is how far that rider reaches. Whether it requires the parties to go on living together indefinitely, until the day the application is made, or whether it simply requires that cohabitation begun before the age of fourteen should run unbroken until the child comes of age.
Everything turned on that reading.
3.Why the adoption was refused at first instance
The first-instance order opted for the stricter interpretation and, moreover, started from an incomplete factual premise. It held that the provision requires a continuity of cohabitation that was not present in this case. From the historical certificate of the municipal population register it took the date on which the adopter and the adoptee ceased to appear as registered at the same address, which was ten days before the son turned fourteen; and it concluded that, from then on, that is for almost ten years, they had not lived together again, apart from the alternate-weekend contact arrangements on which the adoptee accompanied his younger brother. It added that throughout that period the biological father's maintenance obligation had been in force, terminating only in 2023.
The conclusion was dismissal. Put another way, the adoption was being refused to a young man whose only father throughout his life had been the applicant, because a municipal population register said that from a certain date they no longer appeared at the same address.
4.Our case
The appeal was built on four ideas.
First, the factual premise of the order was wrong. The adopter did not leave the family home when the divorce came. The municipal population register showed that he did not move to a new home until November 2018, after the adoptee had come of age. Even on the most rigorous reading of the provision, cohabitation under the same roof had lasted from before his first birthday until after he turned eighteen, without interruption.
Second, the cohabitation the law requires is not synonymous with a single roof. To hold otherwise would mean accepting that the children of divorced parents lose the parent-child relationship with whichever parent moves out of the home, which is both unacceptable and unreal. In blended families, cohabitation is organised through contact arrangements, holiday calendars and a shared family life that does not depend on each person's postal address. Here, moreover, that relationship was regulated and documented, because the adoptee came under the same arrangements as had been fixed for his younger brother, the adopter's biological son.
Third, adoption does not create parentage, it recognises it. What was being sought was not to constitute a new tie, but to give legal form to a relationship of parentage that had existed in fact for more than twenty years. The adopter had acted from the very first as the only parent of the three siblings, drawing no distinction between his biological son and the other two, and that tie remained intact.
Fourth, the adoptee's interests supported all of this. This was not an instrumental exercise. The adoptee was of age, he gave his consent in full awareness of its effects, and what he was after was to be integrated in law into the only family he had ever had. Had it been otherwise, neither would he have consented nor would the adopter have had any reason to apply for it.
5.An added difficulty, the evidence could not be added to
The appeal was filed together with additional documents. The Chamber refused to admit them, recalling that evidence at second instance is exceptional under articles 460 and 270.1 of the “Ley de Enjuiciamiento Civil”, Spain's Civil Procedure Act, and taking the view that the evidence already taken was sufficient. That refusal is worth pausing over, because it explains where the work lay. From then on, the appeal could succeed only on the material already on the case file, the very material that had served the court to refuse the adoption. And so it was. When the order of the Audiencia Provincial reasons that the adopter establishes that he did not move to his new address until November 2018 according to the municipal population register produced, it is necessarily relying on a document that was already on the record, because those filed with the appeal had been rejected.
In other words, the certificate the court had read as proof that cohabitation had broken down was, correctly construed, proof that it had continued until after the adoptee came of age. The records of the appearances of all those concerned, which the first-instance order itself cited, described a full parent-child relationship. The witness evidence taken confirmed the shared family life. It was all there.
When the evidence is closed, the lawyer's room for manoeuvre is reduced to the narrative and to the characterisation. That is exactly where this matter was decided.
6.What the Audiencia Provincial decided
The Chamber set aside the first-instance order and constituted the adoption, with all the effects inherent in that declaration. The reasoning rests on two linked ideas.
The first is that uninterrupted cohabitation from before the age of fourteen until the child comes of age is enough, and that no later cohabitation can be required. The Chamber founds this on the very nature of the institution. Adoption does no more than constitute in law a relationship of parentage that was already occurring in reality, with full integration into the family; and the family, emotional and relational tie created during minority carries on beyond it even though the child stops living with the adopter, because, just as happens with biological parentage, a child's coming of age is followed by his independence and by the creation of his own family unit, without that entailing a break with the one he comes from.
The second is that the breakdown of the couple did not render the cohabitation ineffective, because it was maintained in so far as the contact arrangements laid down in the divorce judgment for the couple's own son were complied with. The Chamber concludes that the parent-child relationship was maintained as article 235-33 requires and that the cohabitation requirement is fully met.
7.The maxim that underpins the decision
The order turns to a classical aphorism to explain why the strict reading was untenable. Adoptio imitatur naturam, adoption imitates nature.
If adoption imitates biological parentage, no more can be required of it than of biological parentage. And no biological child is asked to go on living with his parents after turning eighteen and becoming financially independent in order to remain a child. The Chamber puts it in a sentence that deserves quoting, it would not seem reasonable that what is not required of biological parentage should be required of adoptive parentage. The argument has the further merit of resolving the provision's problem of interpretation without straining its wording. The requirement of continuity is measured up to the age of majority, which is the point at which, in biological parentage too, cohabitation ceases to be a legally relevant fact.
8.The surnames and one last correction
The adoption having been constituted, the order applied article 235-48.2 of the Catalan Civil Code. The adoptee now takes the adopter's surname as his first surname and keeps his mother's as his second.
One detail remained which, in a matter like this, is no small thing. The order had recorded the adoptee's forename in its Spanish spelling rather than the Catalan one, which is the spelling that appears on his identity documents. We applied for a correction under article 215 of the LEC and the Chamber granted it by order, correcting the clerical error in the operative part.
It may look like a formal trifle. It is not. The decision is the instrument that goes on to the “Registro Civil”, the Civil Register, and what was being decided was precisely what a person would be called from then on. To win the adoption and leave the name misspelled would have been a job half done.
9.Why it matters
The decision offers a flexible and realistic reading of the cohabitation requirement in the adoption of adults in Catalonia, alert to the reality of blended families and to the tie of affection that actually exists, as against a literal reading that would leave out many situations of real parentage.
It thereby opens the door to regularising in law father-son relationships built up over years, even though the couple has separated or the child no longer lives in the family home. These situations are far more common than the wording of the provision appears to contemplate, because the model of the family the legislator had in mind is not the only one there is.
And it leaves a practical lesson on how a case file of this kind must be prepared from day one. The experience of this matter is that cohabitation is not established by statements but by documents, and that it is best to gather them before the application is filed and not once an unfavourable decision is already in hand. The historical certificates of the municipal population register for everyone involved, and not just for one of them, because they are what fix the dates. The divorce judgment and the “convenio regulador”, the court-approved separation agreement, because the contact arrangements they lay down for one sibling may be the proof of another's cohabitation. The records of the appearances of all those concerned. The witness evidence of anyone who has seen that family work from the outside. And the photographic record of a continuing family life, trips, celebrations, graduations, which in matters of this kind is not a sentimental ornament but proof of the tie the rule requires.
With all of that on the case file from the outset, a refusal is far less likely. And if one comes, as it came here, the appeal can be built on what is already on the record, which is the only thing the appeal court is going to look at.
In the end, in a case file with no opposing party, with no new evidence admissible at second instance and with a dismissal in the way, all that was left was the account of the facts and how they fitted the rule. That was enough, with the support of the public prosecutor, for a young man whom the law was denying a father he had had all his life now to bear that father's surname in law.
