Kinship Law
Law
No 73-036 of 31 July 1973
CHAPTER ONE: General
Provisions
ART.
1 Kinship
results from common blood, marriage or adoption.
ART. 2 Consanguinity is the
relationship between two persons when one descends from the
other or who are both descended from a common
ancestor.
ART.
3 Consanguinity is determined
by descent. It has its normal origin in marriage. It can be
born out of wedlock.
ART.
4 Kinship
by alliance has its foundation in marriage.
ART.
5 Adoptive parenthood is
established by a legal act.
ART.
6 The
relationship of kinship are determined by lineage.
The lines are
direct or collateral, paternal or maternal.
ART.
7 Direct
kinship is that which is lineally between ascendants and
descendants.
ART.
8 The
collateral kinship is that which exists between people who
have a common ancestor without descending one from the
other.
ART.
9 The
paternal line is formed by all the relatives to which a
person is bound through his father.
The maternal
line, refers to those to which a person is bound through
his mother.
ART.
10 Those
who belong either to the two lines at once, only to the
paternal line, or only to the maternal line, are
respectively related by german relatives, blood relatives,
uterine relatives.
ART.
11 lines
of kinship are divided into degrees.
The degree
corresponds to a generation.
The generation
represented by a common origin is not counted in
determining degrees of kinship.
ART.
12 The
degree of kinship in direct decent corresponds to the
number of generations between ascendants and
descendants.
ART.
13 The
degree of collateral kinship is calculated by counting the
generations that separate one of the relatives of a common
ancestor and that of the other relative.
ART.
14 The
parents of one spouse are tied to the other spouse in the
same line and the same degree.
ART.
15 Kinship creates
obligations.
It gives rise to
disabilities.
The nature of
these impediments and obligations are determined by
law.
ART.
16 The
list of persons united by the ties of kinship defined in
Article I form the social family in which exists the
nuclear family consisting of father, mother and their
children.
ART.
17 All
family members descended through males from a common
ancestor carry the same family name.
CHAPTER
II: Name
ART.
18 Any
individual must have a surname and one or more names.
ART. 19 Any individual may have a
nickname, a pseudonym.
ART.
20 The
surname is acquired by descent, marriage, by decision of
the administrative or judicial authority.
ART.
21 The
surname is immutable, inalienable and indefeasible except
in exceptional cases provided by law. Any change of name of
an ascendant entails a change of name of juvenile
offspring. It involves renaming major descendants who
request it.
ART.
22 The
given or first name serves to distinguish members of a same
family.
It is given to
the child by his or her parents or by the authorities under
section 54. It can only be changed by administrative
decision.
ART.
23 A
married woman acquires the use of the name of her husband
without losing the right to her surname.
This
acquisition is lost by divorce.
A widow
remarried can not keep the name of her former
husband.
CHAPTER III: Filiation
Section I: Acquisition of lineage by birth
ART.
24 The
proof of parentage results from the presumption of
legitimate paternity, voluntary or judicial recognition.
ART. 25 The parentage of any child
born or conceived in wedlock is established with full
rights in respect of the spouses, even if their marriage is
voided. However, the husband has the power of
denial.
ART.
26 The
minimum duration of pregnancy is 180 days, the maximum
duration is 300 days.
A child born 180
days at least after the marriage is considered issued from
this marriage.
A child born
within 300 days after the dissolution of the marriage bond
is also considered to be issued from the dissolved
union.
ART.
27 A
child born more than 300 days after the dissolution of
previous marriage is only considered the legitimate child
of the new spouse unless denied or disputed.
ART.
28 A
legitimate child carries his father's name.
ART.
29 Children born outside of
marriage, other than those born of adulterous trade, are
legitimized by the subsequent marriage of their father and
mother, when they were legally recognized prior to the
marriage or at the time of its celebration. In the latter
case, the officer of civil status who oversees the marriage
will note the recognition and legitimacy in a separate
document.
ART.
30 The
illegitimate children are legitimized in the following
cases, the subsequent marriage of their father and mother,
when they recognize at the time of the marriage in the
manner prescribed by Article 29 above:
1.
Children born through adultery of the mother, when they are
disavowed by the husband;
2. Children born of adulterous affairs of the husband.
ART.
31 The
legitimized child takes the father's name even if he or she
had previously carried by another name.
ART. 32 When the children referred
to in Articles 29 and 30 has been recognized by their
father and mother, or one of these after their marriage,
this recognition shall carry legitimacy only by virtue of a
ruling by the civil court.
ART.
33 Any
legitimation will be noted in margin of the ligitmate
child's birth certificate and will take effect from the
date of birth.
ART. 34 The parentage of a child
born out of wedlock may be established by the concurring
statements of its authors.
ART.
35 The
parentage of children born out of wedlock is established
with full legality with regard to the mother mother by the
simple fact of the birth.
ART.
36 In
respect of the father, proof of parentage of children born
outside marriage results from a recognition or a
trial.
When recognition
does not result from the birth certificate, it is made by
an act prepared by the registrar or notary.
ART.
37 Offspring of adultery can be
recognized as provided by Article 30 of this Act.
ART.
38 For
the recognition of paternity to be valid, it must be
confirmed by the mother of the child.
ART.
39 The
presumed father and mother should be endowed with
discernment, their statements should not be proven false by
reason or probability and the acknowledged child must be of
unknown parentage.
The lack of any
of these conditions will cause a cancellation of the
recognition.
ART.
40 When
the authors of recognition are incapable, the statement is
made or confirmed by their legal representatives.
ART.
41 When
the recognition concerns an adult offspring it must be
accepted by the child.
ART.
42 The
regular recognition of paternity is irrevocable.
ART.
43 No new
paternity of the child is admitted as long as the first has
not been canceled.
ART.
44 If the
conception of a child happens at the time of an abduction
or rape of which his mother was a victim, a judicial
declaration of paternity can be obtained for his benefit in
respect of the author of the kidnapping or rape when the
child has been considered without a father or when he has
been denied.
ART.
45 A
judicial declaration of paternity may also be obtained in
the following cases:
1. In the case
of common-law cohabitation;
2. Where the
alleged father acted as father of the child.
ART.
46 An
action to establish paternity is brought by the mother of
the child.
In case of death
or incapacity of the mother, the action is brought by his
legal representative or that of the child.
ART.
47 The
establishment of the facts constituting the kidnapping or
rape is sufficient to retain the paternity of the author of
these acts, unless it is proved conclusively that the child
was not conceived by works of the man who kidnapped or
raped the mother of the child.
ART.
48 Any
person may obtain judicial recognition of parentage by
being judged that:
1. a
marriage having taken place and a child being born of this
marriage, he or she is this child;
2. recognition was made voluntarily, he or she is that
recognized child;
3. a
woman gave birth to a child, he or she is that
child.
ART.
49 Any
child born outside marriage has the right to seek the
existence of parent-child relationship with other
people.
If his or her
legal representative did not bring the action, he or she
may engage it as soon as he or she acquires the capacity to
act for him or herself.
ART. 50 The applicant shall provide
by all legal means, the proof: either of the relationship
that the alleged father had with his or her mother during
the legal period or that he or she was treated by a man, by
a household, the relatives and society as being the child
of this man or issued from this
household.
ART.
51 A
recognized child carries the name of his father even if he
formerly used that of his mother.
ART.
52 A
child born out of wedlock will receive, upon registration
of the birth, the mother's name.
The child will
continue to bear that name unless acknowledged by a
father.
ART.
53 A
child born out of wedlock whose paternity is established
following an admission of paternity or a judge's decision,
received the lineage of the family's ancestors.
He enjoys the
same rights and same obligations and impediments as the
legitimate child.
ART.
54 The
child of unknown parents will receives one or more names
that will be allocated by the registrar or judge, in the
case that he or she has none.
ART.
55 The
proof of paternity legally unknown at the death of a person
may intervene on behalf of that person's
descendants.
Section II: Adoption
Paragraph I: General Provisions
ART.
56 Any
person may adopt a child or children, either to ensure the
maintainance, education, and physical or legal protection
they need, or to obtain an heir.
In
the first case, it is the "adoption-protection" which
creates or strengthens between adopter and the adoptee the
rights and obligations as provided in paragraph 2 of this
section.
In the second
case, the "adoption-paternity", which establishes ties
similar to those resulting from legitimate
filiation.
ART.
57 No one
shall be adopted by multiple people unless it is by
spouses.
However, in case
of death of the adopter,or adopters a new adoption can be
pronounced.
Paragraph II:
Adoption-Protection
ART. 58 Any adult person may collect
one or more minor children in a state of material or moral
abandonment or which are simply given by the parents.
Adoption-protection takes
place under the rules of tradition, regardless of the
number of children and without other conditions than
effectively taking on the care. It is exercised for the
benefit of children orphaned or otherwise, without
distinction as to affiliation, race, religion or
nationality.
ART. 59 A
person proposing to adopt a child will present a request to
the presiding judge of his home court.
Adoption can take place only
if the following conditions are met:
1. there must be proper motives and the adoption must be
beneficial to the child;
2. if the
adoptee is 15 years old or older, he or she must appear in
person and give consent;
3. if the
adoptee is under 15 years, the act will be passed by his
legal representative;
4. both
parents of the adoptee or one of the two if the other is
deceased or unable to express his will, must give their
consent;
5. if the
adoptee has no father or mother, or if they are unknown or
if they are both unable to express their will, it requires
the consent of the person or the institution having custody
of the child and, if applicable, the family council.
Adoption is made
by ruling in open court, after investigation and discussion
in private.
The prosecution
is heard.
ART.
60 The
adoption-protection gives to the responsibility of the
adopter an obligation to feed, house, maintain and raise
the adoptee and to prepare his or her establishment.
ART. 61 The adopter has exercise of
parental authority over the adopted child.
He or she should
show respect and gratitude to the adopter.
ART.
62 The
adoptee must provide food to the adopter when he is in
need
ART.
63 The
adoption-protection has no effect on the personality
attributes of the adoptee, except legal domicile.
ART.
64 The
adoption-protection is not subject to inheritance except as
provided for by law on succession.
However, gifts
made while living by adopter to adoptee or conversely, may
be subject to recovery when things given are found in
nature in as part of the estate.
ART.
65 The
adoption-protection may be revoked at any time for serious
reasons or in the interest of the child.
The
revocation of the adoption will be done with the same form
of requirements as for the act of adoption.
The act of
revoking the adoption-protection belongs to the following
individuals:
Paragraph III: Adoptive Filiation
ART. 66 Only permitted to be the object of filial adoption those children who are abandoned, or whose parents are unknown or whose parents have died leaving no relatives able to collect them.
Adoption is only otherwise permitted for children under 5 years.
ART. 67 The adoption may be requested:
• by a household with neither children nor legitimate descendants, provided that one spouse is at least 30 years;
• by a single man (single, divorced or widowed) who has neither children nor legitimate descendants and who is at least 30 years;
• by a woman (single, divorced or widowed) who has neither children nor legitimate descendants and is aged at least 30 years.
ART. 68 The adoptive filiation may be granted only if it has benefits for the child.
It is made by ruling in open court, after investigation and discussion in chambers, hearing the public prosecutor. The work or the person who collected the child must be heard.
ART. 69 The adoptive filiation creates between the adopter and the adopted child the same rights and obligations as those resulting from legitimate filiation.
The adoptee takes the name of the adopter.
ART. 70 The adoptive filiation is irrevocable.
Section III: Acknowledgement of Parentage
ART. 71 The apparent parentage attributed to a person may be destroyed by a challenge of the state.
ART. 72 The protest action is exercised by anyone interested.
It is subject to judicial authorization which is granted only when there are presumptions or indications resulting from sufficiently serious and consistent facts.
The judge finds any refusal by order subject to appeal.
ART. 73 The power of denial of recognition given to the father of the child may only be exercised by himself.
ART. 74 The action for disavowal of paternity may be made for the reasons:
1.the conception previous to the marriage. This pre-date is established when the time elapsed between the conclusion of the marriage and birth a period less than the minimum duration of pregnancy;
2.the physical impossibility of cohabitation between the spouses at the time of conception, either because of distance or on account of some accident;
3.adultery by the wife, provided that the woman was not pregnant before adultery and there has been no cohabitation or sexual relations between spouses since the adultery until the birth.
ART. 75 The paternity proceedings are brought before the court of the last domicile of both spouses. It must be filed by a husband who is present as soon as he becomes aware of the pregnancy or birth and no more than sixty days from birth.
ART. 76 The period ceases to run until the husband is unable to act due to an unforeseeable or unavoidable event, unless he designates a special agent.
ART. 77 For a husband absent at the time of the birth of the child, the period of disallowance shall be two months from the date of his return.
The husband from who the birth of the child was hidden also has a period of two months after the discovery of the fraud to institute paternity proceedings.
ART. 78 The paternity proceedings may be commenced by the legal representative of the husband if he is incapable.
In case of failure of the husband's agent, the husband will do it once he acquires the capacity to act for himself.
ART. 79 Where before the expiry of the period of disallowance the husband dies or is considered dead, the heirs can contest the legitimacy of the child of which the deceased is presumed to be the father.
CHAPTER IV: Effects of Kinship Section I: General Provisions
ART. 80 Kinship creates reciprocal duties between parents and children.
ART. 81 The rights of parents are summarized in paternal authority, their duties in the maintenance and education of children.
Section II: On paternal Authority
ART. 82 The paternal power is all the rights and duties of parents in respect of the person and property of their unemancipated minor children.
It is the counterpart of the duties of the parents and has no other purpose than to enable them to fulfill their obligations.
ART. 83 The paternal power ceases with the majority or emancipation of the child.
ART. 84 Upon the person of the child, paternal authority has a right to custody, management, monitoring and correction. It allows parents to choose the child's residence, to be master of his education, to control his relations and correspondence, and to place difficult children appropriate institutions.
On property of the minor, parental authority gives parents, father and mother, a legal right to use, and as long as they both live, the legal parents, a right of legal administration.
ART. 85 The parents have the right to authorize the emancipation of the child, to consent to marriage and adoption, to allow his or her marriage contract, to authorize the emancipated minor to engage in trade, to give the child his or her home.
Paternal authority also gives the surviving father and mother the right to be legal guardian of his or her children and deceased father the right to name a special counsel pursuant to section 103 of the Marriage and Guardianship.
ART. 86 The paternal power belongs to the father and mother during marriage. But the father assures the exercise of it in his capacity as head of household.
ART. 87 The virtual authority already held by the mother gives her certain rights:
1. she must be consulted about the marriage of minor children;
2. for the adoption of her minor child, her consent is required;
3. mother, more than any other person, has standing to seek the disqualification of unfit father;
4. the mother may ask the judge to make the educational placement of the child;
5. the mother has standing to compel the father to fulfill his obligations imposed by law in the interest of the child.
She may demand, in justice, that the father gives his children good education, make an inventory of property belonging to them and respects other mandatory rules for the enjoyment or the legal administration.
ART. 88 The court may, upon the request of the mother order that the child be placed in a given educational institution order the father to pay the cost.
ART. 89 The mother exercises parental authority in place of the father, as provided for in Articles 40 and 41 of the Code of Marriage and Guardianship or in case of disqualification imposed pursuant to Article 6 of the Penal Code.
ART. 90 Upon the death of one parent, the survivor exercises parental authority in accordance with the provisions of the Marriage and Guardianship.
ART. 91 On the death of the second parent, the paternal authority is entirely replaced by the regime of guardianship which thus extends to the person of the child.
ART. 92 In cases of divorce or separation, parental authority shall be settled in accordance with the provisions of Articles 86 and 87 of the Marriage and Guardianship Code.
ART. 93 When a divorced spouse who had custody of the child dies, the survivor will be invested with paternal authority only on new court decision made solely in the interest of the child.
ART. 94 In case of declaration of invalidity of a putative marriage, the spouse in good faith will be granted parental authority.
ART. 95 Where the parentage of the child is not properly established, there is no right of paternal power, then the child is under guardianship.
ART. 96 Where the parentage of the child is regularly established by recognition or by court order, the parent upon whom exercise of parental authority is granted is as follows:
1. if the child is recognized by one of his parents, that parent exercises paternal authority under the supervision of the family council;
2. if the child is recognized by his father and his mother:
a) in case of simultaneous recognition, the father has parental authority, the mother only in the case of death, absence or loss of the father;
b) in case of successive recognitions, paternal authority is exercised by the parent who has acknowledged the child first. The subsequent recognition of the father does not alter the allocation of parental authority to the mother unless the child is legitimated by subsequent marriage of its authors. Paternal power may also be assigned by court order if the interests of the child requires it.
ART. 97 When the child is adopted by two spouses, and they have completed a joint adoption or adoptive legitimation, the attribution rules of paternal authority are the same as in a legitimate family.
ART. 98 The adopter has paternal power over the adoptee which ceases to belong to the original parents.
ART. 99 Parents have a right of general direction on the person of the child. The child should have in their regard a duty of general obedience.
ART. 100 The right of legal authority is a right of usufruct, belonging to parents who exercise parental authority over the property of unemancipated minors. The part of the child's income allocated to expenditure on his or her maintenance is not transferable or seizable. The legal usufruct is attributed, in principle, to the parent who exercises the parental authority.
ART. 101 The legal usufruct is extinguished by emancipation.
Section III: Obligations of Support
ART. 102 The existence of maintenance involves, first, a relationship or marriage, and secondly, at least two people, one in need, the other with sufficient resources to cope. The maintenance obligation is reciprocal.
ART. 103 The provider of support has the obligation to the one in need to provide the means to food, shelter, clothing and medicine.
ART. 104 A support obligation between parents or relatives in the direct line between brothers and sisters born of the same parents, or born of the same father or same mother.
ART. 105 It is also in favor of single mothers and children born out of wedlock. Child support is owed by the father of the child shall be fixed by the court and serve the maintenance of the mother and her child.
The allocation for maintenance of the mother is due for three years from the date of recognition.
It will end if a marriage takes place before the expiry of that period.
ART. 106 The obligation of support ceases between in-laws, in case the link that created the alliance has been dissolved by divorce.
ART. 107 The maintenance is not due either in the case where the one in need has been convicted for an attempt on the life of the provider, or a descendant or spouse thereof.
ART. 108 The maintenance is normally performed by a pension in cash or in kind paid by the provider to the one in need.
The amount of that pension shall be fixed taking into account the needs of those who request it and resources of those who must pay.
ART. 109 The amount of alimony may be revised at the request of recipient or provider.
ART. 110 Unless otherwise decided by the judges, the arrears of maintenance are payable to the residence of the recipient.
ART. 111 The arrears of maintenance are inalienable and indefeasible.
However, they can be, even before maturity, an assignment thereof for the benefit of works that cater to the needs of the recipient.
They can also be seized by those who provided the beneficiary of the pension that was necessary for his subsistence.
ART. 112 The order in which the different providers must ultimately bear the burden resulting from the maintenance obligation is as follows:
a) the first place the spouse; b) second place, offspring, according to their degree; c) thirdly ,the ascendants according to their degree; d) fourth, full blood siblings; e) fifth, half siblings; f) Sixthly, descendants by marriage according to their degree; g) in seventh place in the ascendants by marriage according to their degree.
ART113 Multiple providers may validly agree in their mutual relations that the pension will be provided to a common recipient by only one of them.
The recipient, if he or she has acceded to this agreement, may not apply to other providers to obtain aid, unless there is a serious reason for him or her not to respect this agreement.
ART 114 The adoptee, his spouse and descendants can not claim maintenance from the family of origin unless the adoptive family is unable to provide them.
They are not obliged provide for the ascendants of the family of origin unless they can not get aid from another family member.
ART. 115 One who is obliged vis-à-vis a person, to provide maintenance, is also required to pay the funeral expenses of that person. Whoever made the advance of these fees may apply for reimbursement to the maintenance provider.
ART. 116 It is not possible to derogate by special agreement with the provisions of this section.
ART. 117 Are repealed all previous provisions contrary to this ordinance which shall be enforced as State law.
LAW No 89-06/AN-MR
January 18, 1989
ON CHANGE OF NAME
The
National Assembly deliberated and adopted in its session of
December 29, 1988
The President of the Republic
promulgates the law which reads as follows:
First ART. Any person who has any
reason to change his name must submit a reasoned
application to the Minister of Justice who will send it to
the Government, after investigation.
ART. 2 The decree authorizing the
name change does not take effect until one year after its
publication in the Official Gazette or in a newspaper of
legal notices.
ART.
3 During
this period, any person having an interest therein shall be
permitted to submit application to the Minister of Justice
for the revocation of the decree authorizing the name
change.
ART.
4 The
revocation takes place under the same conditions as the
decree authorizing the name change.
ART.
5 In the
absence of opposition or if it was dismissed, the decree of
name change becomes fully effective at the end of the
year.
Mention
of the new name is given, either automatically or at the
request of the beneficiary of the name change, at the
request of the prosecutor, his home, alongside acts of
civil status of the individual and, if any, of his minor
children.
ART.
6 There
is nothing innovative to the provisions of existing laws
relating to matters of state, involving a change of name
will continue to have recourse to ordinary courts.
Koulouba, le 18 janvier 1989
Le président de la
République
Général
Moussa TRAORE