Ningbo adoption relationship dissolved: adoptive parents children can "break"

Adoptive parents have painstakingly raised their adopted children to adulthood, only to end up in court in their later years, seeking to sever the relationship—such scenarios are not uncommon in Ningbo. To put it bluntly: the law allows for the termination of an adoption relationship, but it cannot be accomplished simply by saying, “I want to cut off all ties.” Once the adoption relationship is registered by the civil affairs department, the same rights and obligations as those of the biological parents and children are created between the adoptive parents and the adoptive children. The dissolution of the adoptive relationship must follow the legal path and fall into the legal situation-either the two parties agree and go to the civil affairs department for the dissolution of registration, or the court decides or mediates the dissolution. More importantly, the termination does not mean that the rights and obligations between the adopted child and the adoptive parents are terminated, but the adult adopted child may still have the obligation to pay living expenses to the adoptive parents who lack the ability to work and the source of income. If the reason for the termination is that the adopted child maltreats or abandons the adoptive parents when they reach adulthood, the adoptive parents also have the right to claim compensation for the maintenance expenses incurred during the adoption. On the other hand, if the adoption was not registered at all that year, the relationship would not be established from the beginning, and there would be no "dissolution". The following is a combination of the provisions of the adoption chapter of the Civil Code, interpretation and jurisprudence, the Ningbo parties are most concerned about the establishment, dissolution, consequences, litigation one by one.

How to establish the 1. adoption relationship: Without registration, there is no legal adoption.

If we want to talk about "dissolution", we must first say "establishment" clearly ". Adoption is an important legal act, and the law has rigid requirements for its form. The first paragraph of Article 105 of the Civil Code stipulates: "Adoption shall be registered with the civil affairs department of the people's government at or above the county level. The adoptive relationship is established from the date of registration. This statement has two key points: registration is a necessary condition for the adoption to take effect, and the adoptive relationship only comes into existence from the date of registration.

In other words, without going through the adoption registration in the civil affairs department, even if both parties live together for many years as "father and son" and "mother and daughter", the adoption relationship is not legally recognized. This is often referred to as "de facto adoption" and is not recognized by the Civil Code. Article 1113 further stipulates that an act of adoption in violation of the provisions of this Part is null and void, and that an invalid act of adoption is not legally binding from the outset.

This point is supported by jurisprudence. In the dispute over the dissolution of the adoption relationship between Feng and Cai, Cai raised Cai Qiong since 2002, but never went to the civil affairs department for adoption registration, and the court found that the adoption relationship was not established. Since the adoption was not valid, the purported “termination” is out of the question, and the parent–child relationship between Cai Qiong and her biological parents remains intact.

We should also supplement the problems left over by history. Before the implementation of the adoption law revised on April 1, 1999, if a domestic citizen adopts a child privately, it shall be dealt with in accordance with the provisions of the Ministry of Justice on the notarization of the de facto adoption relationship established before the implementation of the adoption law; if the parties live together as parents and children for a long time, and the rights and obligations between the adopted child and the biological parents have been eliminated, the adoption can be notarized and the adoption relationship can be established. Many parties in Ningbo took a written evidence decades ago to ask "can we break our relationship?" the first thing is to find out: did you register at that time.

2. two ways of dissolution: dissolution of agreement plus registration, or dissolution of litigation

The Civil Code has designed two channels for the dissolution of the adoptive relationship, one is the dissolution of the agreement after the parties have reached a consensus through consultation, and the other is the dissolution of the lawsuit when the negotiation fails (see Articles 114 to 116).

First, the agreement is terminated, and it is divided into two situations. Before the adoptee reaches adulthood, the adopter and the adopter may reach an agreement and terminate the adoption by agreement. If the adopted child has reached the age of eight, his consent shall also be obtained (Article 114, paragraph 1). After the adoptee reaches adulthood, if the relationship between the adoptive parents and the adult adopted child deteriorates and cannot live together, it may be dissolved by agreement. At this time, the adopter does not need to participate (Article 115). In any case, the agreement only becomes effective once it is registered. Article 1,116 clearly states: "If the parties agree to dissolve the adoptive relationship, they shall go to the civil affairs department to register the dissolution of the adoptive relationship. "Signing a" Dissolution of Adoption Agreement "in private without registration does not have the effect of dissolution-this is the case in the legal inheritance dispute between Li mou and Tang mou: the parties signed the" Dissolution of Adoption Agreement "in 1999, which was neither notarized nor registered. the court found that the adoption relationship was not dissolved until the 2017 judgment was dissolved. the adoption relationship was still in existence when the adoptive parents died, and the adopted children thus enjoyed the right of inheritance.

Again, the lawsuit is dismissed. If no agreement can be reached through consultation, a suit may be filed in a people's court. The effective time of the termination of the action is different from the dissolution of the agreement: in the case of dissolution by litigation, the adoptive relationship shall be dissolved from the date of entry into force of the mediation or judgment on the dissolution of the adoptive relationship. Court hearings in such cases often involve family investigations and mediation.

Statutory circumstances of 3. lifting: who can raise it and under what conditions

The dissolution of the adoptive relationship is not to be dissolved if you want to, but must fall into the legal situation, and the caliber of different subjects at different stages is not the same.

Look at the adoptees before they reach adulthood. The first paragraph of Article 114 establishes a bottom line: "The adopter shall not terminate the adoptive relationship before the adoptee reaches the age of majority, unless the adopter and the adopter agree to terminate the adoptive relationship. "That is to say, in the adoption of minors, the adopter cannot unilaterally throw away his hands in principle. The person who is really given the right of removal by law is the adopter-the second paragraph stipulates that if the adopter fails to perform the obligation of raising, maltreatment, abandonment and other acts that infringe upon the legitimate rights and interests of the minor adopted child, the adopter has the right to request the removal of the adoptive relationship between the adoptive parents and the adopted child; if the adopter or adopter fails to reach an agreement, he may bring a lawsuit to the people's court. The intent of the legislation is clear: to protect minors and not to allow adoptive parents to quit easily when they have raised their children halfway through.

Look at the adoptee as an adult. Article 1,115 stipulates: "If the relationship between adoptive parents and adult adopted children deteriorates and they are unable to live together, the adoptive relationship may be terminated by agreement. If no agreement can be reached, a lawsuit may be filed in a people's court. "The core fact here is that" the relationship has deteriorated and cannot live together ", which can be mentioned by adopters or adult adopted children. In practice, the court's review of the adult adoptive child's claim to be lifted is stricter-after all, the adoptive parents have already brought up the person, but they have to "cut off their relatives" when it is their turn to fulfill their support obligations. If the approval is easily granted, it is easy for the elderly to have no one to rely on. However, the review of the adoptive parent's claim to be lifted is relatively loose, at the same time, it examines whether the adopted children have been abused or abandoned in order to decide whether to compensate for the maintenance.

To sum up, there are four main legal situations that can initiate the dissolution: first, the agreement between the adopter and the adopter before adulthood (the consent of the adopted child over the age of eight); second, the adopter appeals for dissolution due to the adopter's failure to fulfill the obligation of raising, abuse and abandonment; third, the agreement or litigation is terminated due to the deterioration of the relationship between the adopter and the adult adopted child; fourth, if the agreement fails, it will be lifted through litigation.

Legal Consequences of Dissolution of 4.: Termination of Identity Relationship and "Tail" of Property"

The most direct effect of removing the adoptive relationship is the change of the identity relationship. Article 1,117 stipulates: "Upon the dissolution of the adoptive relationship, the relationship of rights and obligations between the adopted child and the adoptive parents and other close relatives shall be eliminated, and the relationship of rights and obligations between the adopted child and the biological parents and other close relatives shall be restored on their own. However, the restoration of rights and obligations between adult adopted children and their biological parents and other close relatives can be determined through consultation. "According to this, there are three meanings: first, the rights and obligations between the adopted child and the adoptive parents and the close relatives of the adoptive parents are eliminated; second, if the adopted child is not yet an adult, the rights and obligations with the biological parents and other close relatives are restored on their own without separate consultation; third, if the adopted child is an adult, whether the rights and obligations with the biological parents are restored or not is determined by the two parties through consultation, nor, of course, to other close relatives.

The treatment of property is provided in article 1,118. "After the dissolution of the adoptive relationship, the adult adopted child raised by the adoptive parents shall be paid living expenses to the adoptive parents who lack the ability to work and the source of income. "Note that two conditions must be met at the same time: one is that the adoptive parents lack the ability to work, and the other is that the adoptive parents lack the source of income. In the dispute over the termination of the adoption relationship between Wang Mou and Wang Moutian, the two parties terminated the relationship due to a deterioration in their relationship and an inability to live together. Taking into account that Wang Mou lacks both the capacity to work and a source of livelihood, the court ordered Wang Moutian to pay living expenses. In the same kind of maintenance dispute between Cheng Mou 1 and Cheng Mou 2, the court also ordered the adult dependent children to pay living expenses of 4

00yuan per month after the dissolution.

Compensatory maintenance is a different matter. The second sentence of Article 118 stipulates: "If the adoptive relationship is terminated due to the maltreatment or abandonment of the adoptive parents after the adopted child reaches adulthood, the adoptive parents may require the adopted child to compensate for the maintenance expenses incurred during the adoption period. "In other words, the adoptive parents have the right to claim compensation only if the reason for the termination is that the adopted child maltreats or abandons the adoptive parents when they reach adulthood; if the termination is only due to the deterioration of the relationship, the adoptive parents have no right to claim the refund of the maintenance fee. In the case of Cheng and Cheng, the court did not support the request for compensation for alimony because there was no evidence of abuse or abandonment.

The third situation is that the birth parents request the release. The third paragraph of Article 118 stipulates that if the biological parents request the termination of the adoptive relationship, the adoptive parents may require the biological parents to make appropriate compensation for the maintenance expenses incurred during the adoption period. Except for the dissolution of the adoptive relationship due to the maltreatment or abandonment of the adopted child by the adoptive parents.

There is another point that is often overlooked: the release is not retroactive. Dissolution is the termination of the adoptive relationship, only forward effect, the effect of the adoptive relationship during the existence of the relationship is not affected, the adoptive parents can not ask the adopter to return the previously spent maintenance costs.

Influence of 5. Dissolution on Inheritance and Maintenance

The adoptive relationship exists, and the inheritance relationship exists. Once the adoptive relationship exists legally, the adopted child and the adoptive parents are each other's first-order legal heirs, which is no different from the children of biological parents. Therefore, whether the adoptive relationship has been dissolved directly determines the existence of inheritance rights. The case of Li and Tang can best illustrate the problem: although the parties signed the "dissolution Agreement", the adoption relationship was not dissolved because it was not registered, and the adoption relationship still existed when the adoptive parents died, thus the adopted children obtained the right of inheritance. Conversely, if the adoption relationship has been lawfully terminated, the right of inheritance between the parties is likewise extinguished, and they are no longer heirs to each other; any inheritance that had already occurred prior to the termination remains unaffected by the termination.

The issue of support is more easily misunderstood. Many people assume that terminating an adoption means everything is settled, but that’s not the case. Upon termination of the adoption relationship, the rights and obligations of support between the adopted child and the adoptive parents do indeed cease; however, the law provides an exception: an adult adopted child who has been raised by the adoptive parents shall provide financial support to adoptive parents who lack both the capacity to work and a source of livelihood. This obligation does not presuppose the existence of the adoptive relationship; it is a compensatory provision of the law to protect elderly adoptive parents. Therefore, even if the court rules to terminate the adoption relationship, if the adoptive parents are elderly and frail and have no source of income, the adult adopted child may still be required to pay a monthly living allowance.

Key Points of 6. Litigation: Cause, Subject and Evidence

If negotiation fails, litigation is required, and several links need to be sorted out in advance.

In terms of the cause of action, the standard designation for this type of dispute is “dispute over adoption relationships,” which is further divided into two categories: “dispute over confirmation of adoption relationship” and “dispute over termination of adoption relationship.” Where the claim seeks termination, the cause of action is designated as “dispute over termination of adoption relationship.”

On the subject, it is necessary to distinguish stages. If the adoptee is a minor, the adopter is usually the plaintiff and the adopter is the defendant. The reason is that the adopter does not perform the duty of raising or maltreats or abandons the adoptee. If the adoptee is an adult, the adopter or an adult child can be the plaintiff. The reason is that the relationship between the two parties has deteriorated and they cannot live together. A party whose agreement has not been discharged may also claim it through litigation.

Jurisdiction is generally under the jurisdiction of the people's court of the defendant's domicile; if the defendant's domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the people's court of the habitual residence. Such cases in Ningbo are accepted by the people's courts of various districts (counties and cities) and tried by the family trial team or the family trial court.

The evidence focuses on three sets of facts. The first group is whether the adoption relationship exists, and the core evidence is the adoption registration certificate. If there is no registration certificate, evidence that can prove the time of adoption and the state of common life should be provided, but it should be noted that adoption may not be established if it is not registered. The second group is the legal cause of dissolution. If the adopter is abused or abandoned, it is necessary to submit the alarm record, injury identification, witness testimony, village committee or neighborhood committee certificate, etc. If the relationship deteriorates, it is necessary to provide evidence of long-term contradiction between the two parties and their inability to live together. The third group is the factual basis of the property claim, advocating living expenses, to prove that the adoptive parents lack the ability to work and have no source of income.

7. common disputes related to dissolution of adoption

In practice, disputes arising from the termination of adoption are primarily concentrated in four categories.

The first category is the validity dispute of "cancellation agreement signed but not registered. The parties thought that the signing of the agreement would break the relationship. As a result, the legal adoption relationship still exists, thus affecting inheritance and maintenance. The lesson to be learned from such disputes is that an agreement is merely a manifestation of intent, while registration is the requisite for its legal effectiveness.

The second category is how to deal with the disputes of de facto adoption. Adoption that was not registered in that year is not legally established, not to mention lifting. However, if the adoptive parents do raise the adopted child, in the event of a dispute between the two parties, the court may, with reference to the relevant provisions on adoption, order the adult and dependent party to give appropriate compensation.In the dispute over the dissolution of the adoption relationship between Zeng A and Zeng B, although the adoption was found invalid, the court ordered Zeng B to compensate 60000 yuan for alimony because Zeng A raised Zeng B to adulthood.

The third category is adoption issues implicated in divorce cases. If the divorce of husband and wife involves adopted minor children, if the validity of the adoption can be confirmed, the court may deal with the issue of support together; If the validity is difficult to confirm directly, the court generally does not directly determine the validity of the adoption, but prompts the parties to request confirmation separately or go to the civil affairs department to go through the formalities, and at the same time deal with the life care of the minor children.

The fourth category involves disputes arising from stepparents adopting their stepchildren. The stepfather or stepmother can adopt the stepchild with the consent of the stepchild girl's parents, but if the adoption registration is not handled, only the maintenance relationship will be formed, and the rights and obligations of the stepchild and the biological parent will not be eliminated; If there is a dispute over the custody of the stepchild who has a dependency relationship during divorce, the biological parents will still be raised by the biological parents in principle.

8. Frequently Asked Questions

Can an “adoption” that has not been registered be terminated?No, because legally this adoption relationship has never been valid from the outset, and there is nothing to rescind. However, the party who has been raised may be required to give appropriate compensation to the adoptive parents when the conditions are met.

Once an adopted child reaches adulthood, can they independently initiate the termination of the adoption? Yes, but there must be the fact that "the relationship deteriorates and can't live together", and in practice, the court's examination is strict, usually there must be sufficient evidence to prove that the relationship can't be maintained.

After the adoption is terminated, are you still required to support your adoptive parents? The maintenance rights and obligations between the adopted children and their adoptive parents will be terminated with the termination of the adoption relationship, but the adopted children who have grown up should still pay living expenses to the adoptive parents who lack the ability to work and the source of livelihood.

After the adoption is terminated, can the relationship with the biological parents be restored? If the adopted child is under age, the rights and obligations with the biological parents and other close relatives will be restored on their own; if the child is already an adult, whether to restore or not will be determined by both parties through negotiation, which will not be restored of course.

Can adoptive parents reclaim the child support expenses they incurred back then?Generally not. The adoptive parents may claim compensation for the maintenance expenses incurred during the adoption period only if the adoptive parents maltreat or abandon the adoptive children after they reach adulthood; if the adoptive parents request the cancellation, the adoptive parents may claim appropriate compensation from the biological parents, except if the adoptive parents themselves maltreat or abandon the adoptive children.

Where should I handle the dissolution of the adoptive relationship? If the agreement is dissolved, go to the civil affairs department to handle the registration of dissolution of the adoptive relationship; if the negotiation fails, bring a lawsuit to the people's court with jurisdiction.

9. Practical Insights from a Lawyer

If you want to "break up" with your adopted children, the first step is not to write a complaint in a hurry, but to find out whether the adoption was established or not. Adoption is an essential act, which is usually established only after registration by the civil affairs department. The so-called "de facto adoption" without registration is not established in law from the beginning, and there is no "dissolution". Once the registration is established, the adoptive parents and the adopted children have the same rights and obligations as the biological parents and children, and the dissolution must fall into the legal situation and take the legal path. Many families bring out a written agreement from decades ago and ask whether they can sever family ties; the first thing they always do is check whether it was officially registered.

When it comes to the step of dissolution, the agreement can be dissolved and registered through negotiation, which saves time and effort than litigation; if negotiation fails, or there are situations of abuse, abandonment, etc., the litigation can be dissolved. The proof in the lawsuit should focus on the specific facts of "deterioration of the relationship and inability to live together" or abuse and abandonment by the other party, and be supported by daily contradictory records, alarm materials, medical treatment records, and testimony of relatives and friends. It is difficult to accept the mere saying that "it is really incompatible. Therefore, as soon as you have the intention to terminate the relationship, consciously gather and preserve all relevant facts and evidence—don’t wait until the trial to start looking for them.

You also need to think clearly in advance about the “aftermath” once it’s lifted. The termination of the status relationship does not mean that everything is zero: adult adopted children may still be obliged to pay living expenses to adoptive parents who lack the ability to work and the source of livelihood. Therefore, no matter which side you are on, you should plan the follow-up issues of property, maintenance and compensation at the same time of dissolution, and don't take "breaking relatives" as the end of the end.

Back to the original question: Can adoptive parents and children "break their marriage"? Yes, but there are conditions, procedures and costs. The adoptive relationship must be registered by the civil affairs department before it can be established, and it must also be canceled through registration or judgment. For adoption at the minor stage, the adopter cannot unilaterally cancel it. The adopter may claim to cancel it when the adopter fails to fulfill the obligation of raising, maltreat or abandon it. After adulthood, only when the relationship deteriorates and cannot live together can it be dismissed. After the dissolution, the rights and obligations in terms of identity are terminated, the relationship between the minor adopted children and their biological parents is restored on their own, and the adult adopted children need to be negotiated. At the same time, the adult adopted children may still have to pay living expenses, and under certain circumstances, the maintenance fee will also be compensated.

Suggestions to the parties are as follows: first, find out whether the adoption registration was handled in that year, which is the starting point for judging everything; second, the dissolution of the agreement must fall on the civil registration, and don't think that it will be finished after signing the agreement; third, sort out the three groups of evidences of adoption relationship, reasons for dissolution and property request before suing; fourth, consider together when related issues such as inheritance and maintenance, avoid the dissolution of the adoption but bury new disputes.