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There are two kinds of divorce in Belgium: divorce on specific grounds and divorce by mutual agreement.
Divorce on specific grounds is based on the violation by one of the spouses, duly proven by the other spouse, of one of the obligations resulting from marriage. These violations are, on a limitative basis, specified in law. Divorce on specific grounds may be based on de facto separation for a period of at least two years, a long separation being considered as an indication of the irremediable failure of the marriage.
Divorce by mutual agreement is realised via the persistent and solemn manifestation of the desire of both spouses to bring an end to their marriage. Each of the spouses must be 20 years of age (Section 275 of the Civil Code). Mutual agreement will be allowed only when the marriage has been contracted at least two years before the filing of the petition (Section 276 of the Civil Code).
Since divorce brings a change to the status of individuals, the matter comes under public order. Consequently, divorce may result only from a judicial decision.
In Belgian legislation, the grounds for divorce are adultery (Section 229 of the Civil Code) , excesses, physical or mental cruelty (Section 231) and de facto separation (Section 232). Although jurisprudence has given an extensive interpretation of the notion of serious injury, this should always fall within the domain of the spouses’ mutual obligations.
Whatever the material fact invoked, it must meet four conditions in order to constitute a ground for divorce, namely, it must involve a serious failure to comply with the obligations arising from the marriage, the failure must be deliberate and imputable to the spouse who is the perpetrator thereof, the failure must be offensive to the spouse who is the victim thereof, and the fact must have occurred during the marriage or at least be concomitant therewith.
The legislator has included divorce based on de facto separation amongst cases of divorce on specific grounds. It does not require, at any time, the agreement of both spouses. It may be imposed by one of the spouses on the other, without a fault having to be demonstrated on the latter’s account. Legal supervision concerns the duration of the separation and the state of irremediable breakdown of the marriage of the spouses, whose separation is only the visible form of their marriage breakdown. The irremediable nature of the marriage breakdown results from a situation in which the resumption of conjugal life cannot be expected. In order to be authorised on the basis of de facto separation, divorce cannot notably aggravate the material situation of the minors born within the marriage or adopted by the spouses.
Divorce on the basis of de facto separation is possible, even when this is owing to the mental state of one of the spouses.
a) Personal relations.
b) Division of property.
c) The spouses’ minor children. (See «Parental responsibility –Belgium)
d) The obligation to pay maintenance to the other spouse. (See «Maintenance claims – Belgium)
Joint assets being dissolved, they have to be liquidated. It is necessary to use the day of the divorce petition as the basis, in order to compile the contents of the assets. Within the framework of divorce based on the notion of fault, only the spouse obtaining the divorce keeps the contractual institutions made in his favour in the marriage contract or during the marriage. When the divorce is pronounced on the basis of de facto separation, the spouse who has obtained the divorce is considered the faulty party and consequently loses any benefits granted by the other spouse. In the case of separation due to the mental state of one of the spouses, each ex-spouse keeps the benefit of the contractual institutions. In the event of divorce by mutual agreement, the parties settle, beforehand, their respective obligations. They may reach a compromise and they may have an inventory drawn up (Section 1287 of the Judicial Code). The prior settlement must be concluded by way of a notarised deed if it concerns real property.
After the dissolution of the marriage by divorce, authority concerning the children and administration of their assets are exercised jointly by the father and mother, or by the one to whom they have been entrusted, or by way of the parties’ duly ratified agreement, or by the decision ordered by the President of the Court ruling in emergency interim proceedings (Section 302 of the Civil Code). Each of the spouses must contribute, in proportion to his ability to do so, to the costs of housing, keeping, caring, and providing education and further education for the children (Section 203 of the Civil Code). This contribution is usually made in the form of maintenance, fixed by the courts. This contribution lasts until the children reach their majority or, if their education is not complete at that time, until it has been completed. The decisions issued on a provisional basis during the divorce proceedings remain applicable after transcription of the ruling, until a different decision has been taken by the competent judge. The parties are bound to settle, in agreements prior to divorce by mutual agreement, the question of authority concerning minors and the administration of their assets both during the period of the divorce proceedings and after the divorce (Section 1288, section 2, of the Judicial Code). They also pay the contribution by each spouse to the appropriate upkeep, education and further education of the children (Section 1288, section 3, of the Judicial Code).
The court may grant the spouse who has obtained the divorce an allowance from the other spouse’s assets and income, the total of which should allow him to live under conditions equivalent to those he enjoyed during conjugal community (Section 301 of the Civil Code). The allowance may not exceed one third of the debtor spouse’s income. It consists of a sum of money, the total of which is lawfully adjusted to the fluctuations in the consumer price index. The court may authorise the collection of the allowance via a transfer. The allowance may, at any time, be replaced by capital. In matters of divorce on grounds of de facto separation, the spouse obtaining the divorce, being considered the spouse at fault, may not be awarded maintenance (Section 306 of the Civil Code). However, if he manages to furnish evidence that the separation is imputable to the actions and failures of the other spouse, the plaintiff may get maintenance. In this instance, Section 307a of the Civil Code upholds that the maintenance may exceed one third of the debtor spouse’s income (contra: rulings 48/2000 and 163/2001 issued by the Arbitration Court).
In the case of divorce by mutual agreement, the parties may agree on the total of any maintenance that one of the spouses pays the other during the period of the divorce proceedings and after the divorce, on the indexation and on the adjustment thereof (Section 1288, section 4, of the Judicial Code). This is not an obligation.
And finally, divorce by mutual agreement produces, in principle, the same effects as divorce on specific grounds, but without forfeitures or civil penalties since it is not pronounced against either spouse.
In all cases in which the spouses may file for divorce on specific grounds, they may also file a petition for separation (Section 1305 of the Judicial Code). In those cases in which the spouses may divorce by mutual agreement, they may also resort to separation. The causes and conditions are rigorously the same. Separation consists in fact of a simple loosening of the marriage bond, the principle of which remains. Separation removes only the obligation to cohabit and the obligation of assistance. The obligations of fidelity and aid remain. On account of this hybrid situation, the legislator allows the spouses against whom the separation has been pronounced or, in the case of separation by mutual agreement, each of the spouses, to request from the court the conversion of the separation into divorce, after two years (Sections 1309 and 1310 of the Judicial Code).
The grounds for separation are the same as those applicable in divorce matters.
Separation does not break the bonds of marriage. It allows the obligations of fidelity and of aid to remain. It entails the separation of property (Section 311 of the Civil Code). The same civil sanctions apply as in divorce matters, namely, the basic loss of matrimonial benefits. The spouse who has obtained the separation may be awarded, not maintenance, but the application of the obligation of aid (Section 213 of the Civil Code). In the case of any conversion of separation into divorce, the spouse who had obtained the separation may claim the benefit of the maintenance provided for in divorce matters (Section 301 of the Civil Code).
Furthermore, the effects of separation by mutual agreement are those of divorce by mutual agreement, subject to the marriage bond not being broken. The obligation of fidelity and aid (possibly settled in prior agreements) also remains.
Marriage constitutes an institution under civil law, which is so important for the family and for society that the legislator has imposed observance of very strict conditions in order to ensure the validity of the marriage bond, and has taken all useful precautions so that these conditions are observed. Preventive civil sanctions are intended to prevent a marriage from being celebrated when it is obvious that the conditions concerning the validity of the marriage are not met. Annulment constitutes a repressive civil sanction, when the marriage has been celebrated in breach of the legal provisions, despite the preventive measures exercised by the registrar. The consequences of marriage being of primary importance, both from the point of view of the status of individuals as well as relating to descent, the legislature has proven extremely circumspect in the organisation of a system of nullity of marriage.
The absolute grounds for annulment are failure to have reached puberty, incest, bigamy, and the illicitness and incompetence of the registrar.
The minimum age for entering into marriage has been fixed at 18, both for men and for women. This requirement originates from the idea that the spouses must have reached a certain level of maturity. There is a ban on marriage between direct ascendants and descendants (Section 161 of the Civil Code). This rule applies both to blood relatives and to adoptive family (Section 363 and 370 of the Civil Code). The ban is also valid as regard collaterals. Marriage is forbidden between brother and sister (Section 162 of the Civil Code). This ban extends to adoptive children of the same parents (Section 363 of the Civil Code). Marriage is forbidden between uncle and niece and between aunt and nephew (Section 163 of the Civil Code) but this ban may be lifted for serious grounds (Section 164 of the Civil Code). There are grounds for annulment in the event of failure to comply with all these bans (Section 184 of the Civil Code). As marriage is prohibited to any person who is already married, it is the second marriage which must be pronounced null and void (Section 188 of the Civil Code). Publicising the marriage being an essential condition for the validity of the act, a clandestine marriage, celebrated outside the presence of spouses or witnesses, is invalid. The presence of the registrar being vital, so that the exchange of the parties’ consents is duly instanced, the absence of this municipal representative constitutes a ground for nullity of the marriage.
Grounds relating to nullity of marriage are vitiated consent of the spouses or of one of them or error concerning one party. In this case, marriage may only be disputed by the spouse whose consent has been vitiated or by that of the spouse led into error, and this, within a certain deadline.
Annulment has the effect of cancelling the marriage, both for the future and for the past. Nullity is effective, retroactively, on the day of the marriage. All the effects of the marriage disappear. The rights created by the marriage are abolished retroactively. The marriage is deemed never to have existed. Matrimonial agreements cannot have any effect.
Each spouse loses the rights he has had on his spouse’s estate. The gifts made with a view to the marriage lose their validity. The maintenance obligation disappears for the future but does not give rise to the return of maintenance given in the past. When the spouses are in good faith, that is, when they have been unaware of the existence of a ground for nullity, the court may decide that the marriage is declared null and void only for the future, whilst it maintains its effects for the past. When one of the spouses is acting in good faith, the marriage produces it effects only with regard to this spouse. The child born during the marriage or within 300 days of the annulment keeps his mother’s husband as his father (Section 315 of the Civil Code). In accordance with Section 202 of the Civil Code, marriage also produces its effects in favour of children, even if no spouse has acted in good faith.
The Act of 19 February 2001 relating to family mediation within the framework of legal proceedings allows the parties in question to ask the judge to appoint a mediator (Sections 734a to 734e of the Judicial Code). The judge may also take an initiative in this sense, but this may result only from the parties’ agreement. When, after the mediation, a full agreement is reached, the parties inform the judge of this and he takes note of the agreement. In the event of a disagreement or partial agreement, the parties may ask the judge for the family mediation procedure to be continued with a view to reaching an agreement. As mediators, the court may approve barristers, notaries and those persons who have completed specific training to this end. The intervention of the mediator occurs without any appearance of the parties before a judge. The judge is simply informed in writing of the result of the mediation. This makes it possible to resolve, without any legal intervention, the problems relating to the obligations arising from the marriage (Sections 203 to 211 of the Civil Code) , to the respective rights and obligations of the spouses (Sections 212 to 224 of the Civil Code) , to the effects of the divorce (Sections 295 to 307a of the Civil Code) and to parental authority (Sections 371 to 387a of the Civil Code). However, family mediation does not apply, in practice, if the criteria for approval of family mediators have not been fixed by way of a royal decree.
Divorce itself remains within the jurisdiction of the courts.
The only judge competent to hear a petition for divorce or separation on specific grounds or a petition for the conversion of separation on specific grounds into divorce is the judge for the last conjugal residence or the defendant’s domicile (Section 628 of the Judicial Code). Regarding mutual agreement, the law does not appoint the territorially competent judge; the spouses contact the court of first instance of their choice (Section 1288a, paragraph 2, of the Judicial Code). The petition for annulment of the marriage is, as is the rule in common law, brought before the judge for the defendant’s domicile (Section 624 of the Judicial Code). For divorce on specific grounds, the summons to appear before the court of first instance contains a detailed description of the facts invoked, along with the identity of the children (Section 1254 of the Judicial Code). The petitioner files an extract of the marriage certificate, an extract of the children’s birth certificates and evidence of the nationality of each of the spouses (ibidem). If one of the spouses is not Belgian, the petitioner must also file the national law of this spouse.
For divorce by mutual agreement, the request is filed by way of a petition. Attached thereto as annexes, in addition to the documents required within the framework of divorce on specific grounds, are the prior agreements concluded by the parties and, where appropriate, an inventory of their assets.
The rules of common law apply. See "legal aid".
An appeal against any decision in this matter, as in the law generally, may be brought in the court of appeal.
A judgment properly given by a foreign court relating to the status of individuals takes effect in Belgium irrespective of any exequatur decision, unless it is taken on the basis for acts of enforcement on the assets or coercion on individuals. Such a ruling benefits, in Belgium, from being legally binding, in so far as it contains nothing contrary to public order or to the regulations of Belgian public law, the rights of the defence have been respected, the foreign judge has not declared himself competent solely on account of the nationality of the petitioner, the decision is issued as a final judgement (res judicata) according to the law of the country in which the ruling has been issued, and the authenticated copy of the ruling brings together the conditions necessary to its authenticity according to the same law (Section 570 of the Judicial Code). Consequently, those spouses wishing to seek application in Belgium of a court decision in divorce, separation or annulment matters, present the documentary evidence to the registrar in the town concerned, namely, the town where the marriage took place or the town of the domicile of one of the spouses. In the event of any dispute, the case must be brought before the court.
Council Regulation (EC) No 1347/2000 of 29 May 2000 (known as the Brussels II regulation) on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for the children of both spouses, in particular Sections 14 to 20 on recognition is also relevant here.
The court of first instance competent to give judgement in an action aimed at objecting to the recognition, in Belgium, of a foreign decision issued in a European Union country in divorce or separation matters, is that of the last conjugal residence or the defendant’s domicile (Section 628 of the Judicial Code). In marriage annulment matters, the competent court is that of the defendant’s domicile (Section 624 of the Judicial Code).
Divorce proceedings filed in Belgium must be followed before the Belgian courts, in accordance with the provisions in Belgian law; these provisions concern in particular, the territorial competence of the court of first instance.
As regards the basic conditions, in principle, an individual’s status is governed by his national law (Section 3(3) of the Civil Code). Problems arise when concurrent laws do not agree on the solutions. The Act of 27 June 1960 on the admissibility of divorce when at least one of the spouses is a foreigner has resolved certain issues. Unresolved problems remain subject to Section 3(3) , mentioned above.
Thus, in the case of divorce between spouses, one of whom is Belgian, the other a foreigner, the admissibility of divorce on specific grounds, the causes and conditions thereof, are governed by Belgian law (Sections 2 and 3 of the Act of 27 June 1960). In this same situation, divorce by mutual agreement is allowed, in accordance with Belgian law (Section 2 of the Act of 27 June 1960) and the basic conditions are those of Belgian law. In the case of marriage between foreigners, the admissibility of divorce on specific grounds is governed by Belgian law, unless the national law of the petitioner spouse opposes this (Section 1 of the Act of 27 June 1960). The grounds for divorce come under Belgian law (Section 3 of the aforementioned Act). In this same situation, the national law of the spouses determines whether they may divorce by mutual agreement and under what conditions (Section 3(3) , of the Civil Code).Top
Last update: 05-01-2007