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Luxembourg law provides for two main types of divorce: divorce by mutual consent and divorce on specific grounds. In the case of divorce on specific grounds, a distinction must be drawn between divorce on the grounds of cruel, inhuman or degrading treatment, which is commonly referred to as fault divorce, and divorce on the grounds of legal separation for a certain period.
Divorce by mutual consent can be granted only after two years of marriage. Each of the spouses must be at least 21 years old.
If the spouses have property that must be divided, a notary must draw up an inventory and estimate its value. They then settle at their discretion their respective rights to the property concerned. However, if there is no property to be inventorised, the intervention of the notary is not required.
The spouses must reach an agreement on their residence during the proceedings, on the arrangements for their children during and after these proceedings, on the contribution of each of the spouses to the education and maintenance of the children before and after the divorce and, finally, on the amount of any maintenance to be paid by one of the spouses to the other spouse during the proceedings and after the divorce has been granted. This agreement must take the form of a document signed by both spouses.
Fault divorce is subject to proof of cruel, inhuman or degrading treatment by one spouse towards the other. Not only must such actions constitute a serious or repeated violation of the duties and obligations arising from the marriage, but they must also make the continuation of marital life intolerable.
Spouses can request a divorce for separation in the following cases:
The court can dismiss the application for divorce if it decides that the divorce would have exceptionally detrimental financial or moral consequences for the respondent or for the children.
The marriage is dissolved by the divorce decision. The respective duties of the spouses, i.e. obligations of fidelity, support and assistance, end. In principle, divorced women and divorced men forfeit the use of the name of their spouse as a result of the divorce. However, the courts can authorise a spouse to use the name of the other spouse in the event of a disagreement or if this spouse has exercised a professional or commercial activity under that name.
If the divorce is granted on the grounds of cruel, inhuman or degrading treatment, the spouse who loses the case forfeits all the matrimonial advantages that his/her spouse had given him/her either under the terms of the marriage contract or since the date of the marriage. Matrimonial advantages are understood to mean all the donations that the spouses have made to each other (e.g. under the marriage contract or by a separate deed during the marriage). However, matrimonial advantages do not include ordinary donations and gifts made by a will prior to the marriage. In the event of a divorce granted against both spouses, this deprivation of rights will be incurred by both spouses. In contrast, the innocent spouse retains any advantages granted by his/her spouse.
In the case of a divorce on specific grounds, the spouses are free to apply for legal separation.
Legal separation, which loosens but does not dissolve the matrimonial ties, ends the duty of cohabitation but maintains between the spouses the duty of fidelity and the duty of support. Consequently, adultery by either of the spouses remains reprehensible and may, mutatis mutandis, constitute grounds for divorce.
The grounds for legal separation are identical to those for divorce on specific grounds.
Legal separation always entails the separation of goods. If the legal separation has lasted three years, either spouse may apply to the court for a divorce. The court grants the divorce if the other spouse does not immediately agree to end the separation.
Marriage annulment means that the marriage is rendered null and void by a court decision. In other words, the marriage is deemed never to have been celebrated.
There are several conditions for marriage annulment:
A marriage that is declared to be null and void produces effects (theory of the putative marriage) :
Therefore, a marriage that is declared null and void never produces effects in respect of the spouse who did not act in good faith.
In the Grand Duchy, there are private organisations that offer services within the framework of family mediation. In this context, certain organisations (e.g. Espace parole) also deal with questions connected with divorce. The use of family mediation is optional.
The case is submitted, examined and judged according to normal procedures, having heard the public prosecutor’s office. To be valid, the summons must contain, in addition to the ordinary formalities, a detailed description of the facts and, where appropriate, the identity of any children under age who are not married or independent. The summons must be served upon the respondent by a bailiff. The applicant must attach a copy of the marriage certificate and the children’s birth certificates.
The summons can also contain requests relating to provisional measures concerning the person, maintenance and property of the parties and of their children. In this instance, the case is also brought before the hearing of the president or of the judge substituting for him, deciding as in chambers.
The two spouses must submit their application for divorce together and in person, without a lawyer or notary, to the president of the civil court of their district. At the same time, they must submit the aforementioned agreement and the notarial deed describing the division of property. The spouses must appear before the president of the court for a second time six months after the first appearance to declare once again their intention to obtain the dissolution of the marriage. Once the public prosecutor has presented his pleadings, the court grants the divorce if the above conditions are met or otherwise refuses to grant the divorce.
Persons whose income is considered to be insufficient according to Luxembourg law can receive legal aid. To receive this aid, they must fill in a questionnaire that can be obtained from the central social work department and send it to the territorially competent president of the bar association, who will take the decision.
Legal aid covers all the costs relating to the court proceedings, procedures or actions for which it is granted. It covers, for example, stamp duties and registration costs, clerks’ fees, lawyers’ fees, bailiffs’ duties and fees, notaries’ expenses and fees, technicians’ expenses and fees, witness taxes, fees of translators and interpreters, fees for certificats de coutume, travelling expenses, duties and fees relating to formalities for registration, mortgage and encumbrance and where necessary costs for publication in newspapers.
In the Grand Duchy, it is possible to appeal against this kind of decision. In principle, the period for the appeal is 40 days, but this period can be extended if the applicant resides abroad. The competent court for any appeal is the High Court of Justice.
Under the terms of the “Brussels II” Regulation (EC) , judgments regarding divorces, legal separations or marriage annulments given by the court of another country of the European Union are recognised ipso jure. This means that the recognition of a decision is not subject to any procedure.
The updating of civil records in the Grand Duchy following a judgment that has become res judicata given by a court of a country of the European Union is also provided for without any preliminary procedure being required. The decision of the court granting the divorce must be mentioned in the margin of the marriage certificate and of the birth certificates of the spouses. If the marriage was celebrated abroad, the decision of the court must be entered in the civil registers of the municipality in which the marriage certificate was transcribed, otherwise in the civil registers of the city of Luxembourg, and, furthermore, mentioned in the margin of the birth certificates of each spouse.
Any interested party may apply to the president of the district court by a request to hand down a decision not recognising a judgment regarding divorce, legal separation or marriage annulment given by a court of another country of the European Union.
The president of the district court decides within a short period, it being understood that the person against whom the non-recognition decision is requested may not submit any remarks at this stage in the proceedings. The request may be dismissed on the following grounds:
Either party may appeal before the court of appeal against the decision of the president of the district court. The appeal is examined according to the rules of adversarial procedure. An appeal in cassation against the decision of the court of appeal may be brought before the court of cassation.
Divorce and legal separation are governed by:
Last update: 03-08-2007