MAURITIUS Law and Practice Contributed by: Narghis Bundhun, Marylou Subramanien and E’jaaz Bundhun-Puddoo, The Chambers of Narghis Bundhun SC
However, pursuant to Article 371-4 of the Mauritian Civil Code, the Supreme Court can order that a third party, whether related to the child or not, be entrusted with the latter’s custody, if it is in the latter’s best inter - est. The court will determine the extent of the parental responsibility that this person will exercise over the child. This provision of the law can be interpreted to apply to the partner of a parent who has the custody of a child (ie, a step-parent not biologically related to the child). 1.5 Relevance of Marriage at Point of Conception or Birth The laws in Mauritius distinguish between legitimate and natural children. Children who are born within marriage are legitimate children. The mother’s hus - band is presumed to be the father of the child, as provided by Article 312 of the Mauritian Civil Code. For as long as the parents do not separate or divorce, both parents exercise joint parental responsibility. The situation differs when it comes to a natural child. The parents shall exercise joint parental responsibil - ity only if they live within the same household as the child, and both parents have acknowledged the child. Otherwise, parental responsibility will be exercised solely by the parent with whom the child resides. 1.6 Same-Sex Relationships Same-sex relationships have no legal recognition in Mauritian law. In this instance, the issue of parental responsibility as regards parents of the same sex does not arise. There are currently no reported cases on this issue. Please refer to 1.4 Requirements for Non- Genetic Parents for additional information. 1.7 Adoption Three types of adoption exist in Mauritian Law: adoption simple , adoption plénière , and légitimation par adop- tion (Articles 343 to 370-5 of the Mauritian Civil Code). The distinction between the three types of adoption relate to the adoptee, the adopter and the conse - quences of each type of adoption. Adoption Simple In adoption simple , any person can be adopted irre - spective of their legal parentage (legitimate, natural or abandoned). A married couple or a single person,
whether married, divorced or widowed, can apply to adopt. The adoptee’s family name may be changed, but not their first name. The major consequence for the child is that they maintain a family relationship with the biological family and acquire another legal rela - tionship within the adoptive family. For instance, the adoptee has inheritance rights in both their biological and adoptive family. Adoption simple can be revoked at the instance of the adoptee, the adopter, the bio - logical parents and/or any interested party. Adoption Plénière In the case of adoption plénière , any child can be adopted irrespective of their legal parentage (legiti - mate, natural or abandoned). Only married couples (and this only concerns legally recognised heterosex - ual marriages) can have recourse to this type of adop - tion. In terms of consequences for the adoptee, they sever all legal relationships with their biological family and are fully integrated into the adoptive family to the extent that their first name, as well as family name, can be changed by the adopting parents. Adoption Légitimation par adoption only applies when the spouse of a person adopts the child of that spouse. The consequences are that the adoptee is fully assimi - lated to a child born from the marriage who can acquire the husband’s family name and is deemed to be a legitimate child of the marriage. This type of adoption is irrevocable. plénière cannot be revoked. Légitimation par Adoption In all three adoption types, if the adopters are non- citizens (international adoptions), they must first apply to the National Adoption Council, which will ascertain whether – in the circumstances – it would be in the interests of the child to allow the application to pro - ceed to court, whether it is a bona fide application free of child trafficking issues and whether the application complies with the Hague Convention on International Child Adoption. In all instances, the adopter/adopters will have paren - tal responsibility from the moment that the court makes the formal adoption order.
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