Article Austria: Constitutional Court Holds Unmarried Couples May Adopt Together

In a decision published on January 10, 2022, the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) held that the Austrian Civil Code does not exclude unmarried couples from joint or second parent (successive) adoption. Even though it rejected the applicants’ claim that the relevant section of the Austrian Civil Code was unconstitutional, the Constitutional Court ruled that the section had to be interpreted in a manner consistent with the principle of equal treatment and with article 8 of the European Convention on Human Rights (ECHR) (the right to respect for private and family life) in conjunction with article 14 of the ECHR (prohibition of discrimination).

Applicable Law

Section 191, paragraph 2 of the Austrian Civil Code provides as follows:

In general, spouses may only adopt together. Exceptions are possible, if the adoptive child is the biological child of the other spouse, if one spouse cannot adopt because he or she does not fulfil the legal requirements with regard to legal capacity or age, if one spouse’s residence has been unknown for at least a year, if the marital relationship has been abandoned for at least three years, or if there are similar and equally substantial reasons that justify the adoption by only one spouse.

Section 194, paragraph 1 provides that “[t]he adoption of a minor child must be granted if it is in its best interest and if a relationship equivalent to the one between biological parents and children exists or will be established.”

Facts of the Case

Applicants one and three are cohabiting and do not have any children. Applicant two is a minor who was given up for closed adoption by her biological mother. With permission of the local authorities, she was placed in foster care with the applicants. In January 2021, applicant three entered into an adoption contract with the local youth authorities, which was approved by the district court in February 2021. (Decision paras. 3, 4.) In June 2021, applicant one and applicant two, represented by applicant three as her legal guardian, entered into an adoption contract. They requested approval of the contract from the district court, which was denied. According to the district court, section 191, paragraph 2 of the Austrian Civil Code excludes unmarried couples from joint adoption; only married couples or registered partners may jointly adopt. Furthermore, it stated that stepchild adoption was also not possible, because the child in question was not the biological child of applicant three, but his adopted child. In the opinion of the district court, Austrian law does not allow “successive adoption” for unmarried couples, meaning adopting a child already adopted by their partner. (Paras. 5, 6.)

The applicants appealed the district court decision and requested the Constitutional Court to declare section 191, paragraph 2 of the Civil Code unconstitutional. They alleged that the prohibition on unmarried couples jointly adopting a child or adopting the nonbiological adopted child of their partner constituted discrimination, in particular with regard to the right to respect for private and family life (ECHR art. 8), the right to the optimal development and self-realization of the child with the well-being of the child as the primary consideration (Federal Constitutional Act on the Rights of Children art. 1), and the prohibition of discrimination and principle of equal treatment (Basic Law on the General Rights of Nationals art. 2; Federal Constitutional Law art. 7; ECHR art. 14 in conjunction with art. 8). (Decision para 7.)

Decision

The Constitutional Court denied the application of the applicants to declare section 191, paragraph 2 of the Austrian Civil Code unconstitutional. It held that the district court misinterpreted the relevant provision, stating that an interpretation that generally excludes unmarried couples from adopting together would violate article 8 in conjunction with article 14 of the ECHR, as well as the principle of equal treatment codified in article 7 of the Federal Constitutional Law. It declared that it had no doubts that the best interest of the child could be safeguarded in a stable, committed relationship of unmarried people. A court must determine on a case-by-case basis whether an adoption by an unmarried couple serves the best interest of the child. (Para. 42.) Article 191, paragraph 2 is limited to stating that married couples may generally only adopt jointly unless one of the enumerated exceptions applies. It does not exclude joint or successive adoption by unmarried couples. (Para. 43.)

About this Item

Rights & Access

Publications of the Library of Congress are works of the United States Government as defined in the United States Code 17 U.S.C. §105 and therefore are not subject to copyright and are free to use and reuse.  The Library of Congress has no objection to the international use and reuse of Library U.S. Government works on loc.gov. These works are also available for worldwide use and reuse under CC0 1.0 Universal. 

More about Copyright and other Restrictions.

For guidance about compiling full citations consult Citing Primary Sources.

Credit Line: Law Library of Congress

Cite This Item

Citations are generated automatically from bibliographic data as a convenience, and may not be complete or accurate.

Chicago citation style:

Austria: Constitutional Court Holds Unmarried Couples May Adopt Together. 2022. Web Page. https://www.loc.gov/item/global-legal-monitor/2022-02-02/austria-constitutional-court-holds-unmarried-couples-may-adopt-together/.

APA citation style:

(2022) Austria: Constitutional Court Holds Unmarried Couples May Adopt Together. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2022-02-02/austria-constitutional-court-holds-unmarried-couples-may-adopt-together/.

MLA citation style:

Austria: Constitutional Court Holds Unmarried Couples May Adopt Together. 2022. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2022-02-02/austria-constitutional-court-holds-unmarried-couples-may-adopt-together/>.