MARCKX v. BELGIUM JUDGMENT
6
("successeur irrégulier"): he has to seek a court order putting him in
possession of the estate (envoi en possession). He is the sole beneficiary of
his deceased mother’s estate only if she leaves no relatives entitled to inherit
(Article 758); otherwise, its maximum entitlement - which arises when his
mother leaves no descendants, ascendants, brothers or sisters – is threequarters of the share which he would have taken if "legitimate" (Article
757). Furthermore, his mother may, during her lifetime, reduce that
entitlement by one-half. Finally, Article 756 denies to the "illegitimate"
child any rights on intestacy in the estates of his mother’s relatives.
18. Recognised "illegitimate" children are also at a disadvantage as
regards voluntary dispositions, since Article 908 provides that they "may
receive by disposition inter vivos or by will no more than their entitlement
under the title ‘Inheritance on Intestacy’".
Conversely, the mother of such a child, unless she has no relatives
entitled to inherit, may give in her lifetime or bequeath to him only part of
her property. On the other hand, if the child’s affiliation has not been
established, the mother may so give or bequeath to him the whole of her
property, provided that there are no heirs entitled to a reserved portion of
her estate (héritiers réservataires). The mother is thus faced with the
following alternative: either she recognises the child and loses the
possibility of leaving all her estate to him; or she renounces establishing
with him a family relationship in the eyes of the law, in order to retain the
possibility of leaving all her estate to him just as she might to a stranger.
3. Adoption of "illegitimate" children by their mother
19. If the mother of a recognised "illegitimate" child remains unmarried,
she has but one means of improving his status, namely, "simple" adoption.
In such cases, the age requirements for this form of adoption are eased by
Article 345 para. 2, sub-paragraph 2, of the Civil Code. The adopted child
acquires over the adopter’s estate the rights of a "legitimate" child but,
unlike the latter, has no rights on intestacy in the estates of his mother’s
relatives (Article 365).
Only legitimation (Articles 331-333) and legitimation by adoption
(Articles 368-370) place an "illegitimate" child on exactly the same footing
as a "legitimate" child; both of these measures presuppose the mother’s
marriage.
C. The Bill submitted to the Senate on 15 February 1978
20. Belgium has signed, but not yet ratified, the Brussels Convention of
12 September 1962 on the Establishment of Maternal Affiliation of Natural
Children, which was prepared by the International Commission on Civil
Status and entered into force on 23 April 1964. Neither has Belgium yet
ratified, nor even signed, the Convention of 15 October 1975 on the Legal