21
MARCKX v. BELGIUM JUDGMENT
one that usually serves to establish legal ties between one individual and
another’s child; to oblige in practice an unmarried mother to utilise such a
procedure if she wishes to improve her own daughter’s situation as regards
patrimonial rights amounts to disregarding the tie of blood and to using the
institution of adoption for an extraneous purpose. Besides, the procedure to
be followed is somewhat lengthy and complicated. Above all, the child is
left entirely at the mercy of his parent’s initiative, for he is unable to apply
to the courts for his adoption.
56. Unlike a "legitimate" child, Alexandra has at no time before or after
30 October 1974 had any entitlement on intestacy in the estates of members
of Paula Marckx’s family (see paragraph 49 above). Here again, the Court
fails to find any objective and reasonable justification.
In the Government’s submission, the reason why adoption in principle
confers on the adopted child no patrimonial rights as regards relatives of the
adopter is that the relatives may not have approved of the adoption. The
Court does not have to decide this point in the present proceedings since it
considers discriminatory the need for a mother to adopt her child (see
paragraph 55 above).
57. As regards the sum total of the patrimonial rights claimed by the
second applicant, the Court notes that the Bill submitted to the Senate on 15
February 1978 (see paragraph 21 above) advocates, in the name of the
principle of equality, "the abolition of the inferior status characterising, in
matters of inheritance, the lot of illegitimate children" as compared with
children born in wedlock.
58. The Government also state that they appreciate that an increase in the
"illegitimate" child’s inheritance rights is considered indispensable;
however, in their view, reform should be effected by legislation and without
retrospective effect. Their argument runs as follows: if the Court were to
find certain rules of Belgian law to be incompatible with the Convention,
this would mean that these rules had been contrary to the Convention since
its entry into force in respect of Belgium (14 June 1955); the only way to
escape such a conclusion would be to accept that the Convention’s
requirements had increased in the intervening period and to indicate the
exact date of the change; failing this, the result of the judgment would be to
render many subsequent distributions of estates irregular and open to
challenge before the courts, since the limitation period on the two actions
available under Belgian law in this connection is thirty years.
The Court is not required to undertake an examination in abstracto of the
legislative provisions complained of: it is enquiring whether or not their
application to Paula and Alexandra Marckx complies with the Convention
(see paragraph 27 above). Admittedly, it is inevitable that the Court’s
decision will have effects extending beyond the confines of this particular
case, especially since the violations found stem directly from the contested
provisions and not from individual measures of implementation, but the