In a legal sense, adoption is an act by which a person, with the cooperation of the public authority, selects for his child one who does not belong to him. In Roman law adrogatio was the name given to the adoption of one already of full age ( sui juris ); datio in adoptionem , when one was given in adoption by one having control or power over him. The adoption was full ( plena ) if the adopting father was a relative in an ascending scale of the one adopted; less full ( minus plena ) if there was no such natural tie. Perfect adoption placed the adopted under the control of the adopter, whose name was taken, and the adopted was made necessary heir. The adoption was less perfect which constituted the adopted necessary heir, in case the adopter should die without a will. The rule was that a man, not a woman, could adopt; that the adopter should be at least 18 years older than the adopted; that the adopter should be of full age, and older than 25 years. In Athens the power of adoption was allowed to all citizens of sound mind. Adoption was very frequent among the Greeks and Romans, and the custom was very strictly regulated in their laws.
The Church made its own the Roman law of adoption, with its legal consequences. Pope Nicholas I (858-867) spoke of this law as venerable, when inculcating its observance upon the Bulgarians. Hence adoption, under the title cognatio legalis , or "legal relationship ", was recognized by the Church as a diriment impediment of marriage. This legal relationship sprang from its resemblance to the natural relationship (and made a bar to marriage):
- civil paternity between the adopter and the adopted, and the latter's legitimate natural children, even after the dissolution of the adoption;
- civil brotherhood between the adopted and the legitimate natural children of the adopter, until the adoption was dissolved, or the natural children were placed under their own control ( sui juris );
- affinity arising from the tie of adoption between the adopted and the adopter's wife, and between the adopter and the adopted's wife. This was not removed by the dissolution of the adoption.
The Church recognized in the intimacy consequent upon these legal relations ample grounds for placing a bar on the hope
of marriage, out of respect for public propriety, and to safeguard the morals of those brought into such close relations. The Code of Justinian modified the older Roman law
by determining that the rights derived from the natural parentage were not lost by adoption
by a stranger. This gave rise to another distinction between perfect and imperfect adoption. But as the modification of Justinian made no change in the customary intimacy brought about by the adoption, so the Church at no time
expressly recognized any distinction between the perfect and less perfect adoption
as a bar to marriage. There arose, however, among canonists a controversy on this subject, some contending that only the perfect adoption
was a diriment impediment to marriage. Benedict XIV (De Syn. Dioec., I, x, 5) tells of this discussion and, while giving no positive decision, lays down the principle that all controversies must be decided in this matter
in accord with the substantial sanctions of the Roman law. This is a key to the practical question which today arises from the more or less serious modifications which the Roman, or Civil, law
has undergone in almost all the countries where it held sway, and hence flows the consequent doubt, at times, whether this diriment impediment of legal relationship
still exists in the eyes of the Church. Wherever the substantial elements of the Roman law
are retained in the new codes, the Church recognizes this relationship
as a diriment impediment in accord with the principle laid down by Benedict XIV. This is thoroughly recognized by the Congregation of the Holy Office in its positive decision with regard to the Code of the Neapolitan Kingdom (23 February, 1853). In Great Britain and the United States legal adoption, in the sense of the Roman law, is not recognised. Adoption
is regulated in the United States by State statutes ; generally it is accomplished by mutual obligations assumed in the manner prescribed by law. It is usually brought before the county clerk, as in Texas, or before the probate judges, as in New Jersey. In such cases the relation of parent and child is established; but the main purpose is to entitle the adopted to the rights and privileges of a legal heir. Adoption, or contract
by private authority, or under private arrangements, is not recognized by the Church as productive of this legal relationship. The Congregation of the Holy Office (16 April, 1761) had occasion to make this declaration with regard to it, as customary among the Bulgarians. Hence, generally in the United States adoption
is not a diriment impediment to marriage, nor in the eyes of the Church in any way preventive of it. A different view is taken by the Roman Congregations of the Holy Office and of the Sacred Penitentiary of adoption
as recognised in other countries which have retained the substantial elements of the Roman law
establishing this relationship. The French Code (art. 383) decides that the adopted will
remain with his natural family
and preserve all his rights, but it enforces the prohibitions of marriage as in the Roman law. Hence the Congregation of the Penitentiary decided (17 May, 1826) that if the adoption
took place in accordance with the French law, it involved the canonical diriment impediment of marriage. In Germany, by the new law
taking effect in 1900, there is prescribed the procedure by which adoption
is effected, and by which the adopted passes into the family
of the adopter, losing the rights coming from his natural family. In Germany, however, many subtile distinctions have been engrafted upon this adoption. The restrictions of the relationship
by the German law
are not, however, accepted by the Church. When adoption
is in accord with the substantial elements of the Roman law, as in the case of the German code, in the eyes of the Church it carries with it all the restrictions in the matter
of marriage accepted by the Church from the Roman law. Thus, by the German law, the wife of the adopter is not united by affinity to the adopted, nor the adopter to the adopted's wife. But the Church still recognises this affinity to hold even in Germany. The Austrian Code has almost the same prescriptions as the German. When there is a reasonable doubt
or difference of opinion among canonists or theologians upon the fact of legal relationship, the safe rule is to ask for a dispensation. In the Legislature of Quebec, a few years ago, an attempt was made to introduce into the Civil Code the almost identical principles of the Napoleonic Code for adoption, but the proposal was rejected by the Chamber. The Church authorities in Canada
do not recognise that any impediment to marriage arises from whatever private arrangements of adoption
may be there recognized.
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