European Commission > EJN > Divorce > Luxembourg

Last update: 03-08-2007
Printable version Bookmark this page

Divorce - Luxembourg

EJN logo

This page is now obsolete. The original language version has been updated and moved to the European e-Justice Portal.


 

TABLE OF CONTENTS

1. What are the conditions for obtaining a divorce? 1.
2. What are the grounds for divorce? 2.
3. What are the legal consequences of a divorce as regards: 3.
a) the personal relations between the spouses? a)
b) the division of property of the spouses? b)
c) the minor children of the spouses? c)
d) the obligation to pay maintenance to the other spouse? d)
4. What does the term “legal separation” mean in practical terms? 4.
5. What are the conditions for legal separation? 5.
6. What are the legal consequences of legal separation? 6.
7. What does the term “marriage annulment” mean in practice? 7.
8. What are the conditions for marriage annulment? 8.
9. What are the legal consequences of marriage annulment? 9.
10. Are there alternative non judicial means for solving issues relating to the divorce without going to court? 10.
11. Where should I lodge my application (petition) for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment? 13.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in the Grand Duchy of Luxembourg? 14.
15. To which court should I turn to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases? 15.
16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in the Grand Duchy of Luxembourg or who are of different nationality? 16.

 

1. What are the conditions for obtaining a divorce?

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.

2. What are the grounds for divorce?

a. Divorce by mutual consent

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.

b. Divorce on the grounds of cruel, inhuman or degrading treatment (referred to as fault divorce)

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.

TopTop

c. Divorce on the grounds of legal separation

Spouses can request a divorce for separation in the following cases:

  • continuous legal separation for at least three years, if it appears that the breakdown of the marriage is irretrievable;
  • legal separation for over five years due to the apparently incurable state of mental disorder of the other spouse and it appears that the breakdown of the marriage is irretrievable.

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.

3. What are the legal consequences of a divorce as regards:

a) the personal relations between the spouses?

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.

TopTop

b) the division of property of the spouses?
  • The divorce decision orders the liquidation and division of the matrimonial property of the spouses. If there is no marriage contract, the spouses fall under the joint estate arrangement, i.e. the matrimonial property is reduced to acquisitions. Divorce dissolves the joint estate arrangement. As regards the division of property, there are two main stages.
  • Firstly, each of the spouses recovers the property that was not part of the community, if any, in kind, otherwise the goods which have been subrogated. Secondly, the joint estate (assets and liabilities) is liquidated. A statement is drawn up on behalf of each spouse of the assets that the community owes him/her and the assets that he/she owes to the community.
c) the minor children of the spouses?

See “Parental responsibility - Luxembourg

d) the obligation to pay maintenance to the other spouse?

See “Maintenance claims - Luxembourg

4. What does the term “legal separation” mean in practical terms?

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.

TopTop

5. What are the conditions for legal separation?

The grounds for legal separation are identical to those for divorce on specific grounds.

6. What are the legal consequences of legal separation?

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.

7. What does the term “marriage annulment” mean in practice?

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.

8. What are the conditions for marriage annulment?

There are several conditions for marriage annulment:

  • The marriage was contracted without the free consent of the spouses. This is the case if there has been violence or if the person concerned was mistaken as to the essential qualities of the person.
  • The marriage was contracted without the consent of the father and mother, of the ascendants or of the family council, where such consent was necessary. This is the case if the spouses had not reached the age of 18 years when the marriage was celebrated.
  • Bigamy. This is the case if either of the spouses was simultaneously married to other persons.
  • The conditions as regards the form of the marriage were not met: a marriage not publicly contracted, a marriage celebrated before an incompetent public official or failure to observe the formalities for the publication of banns.

9. What are the legal consequences of marriage annulment?

A marriage that is declared to be null and void produces effects (theory of the putative marriage) :

TopTop

  • in respect of both spouses, if they contracted the marriage in good faith;
  • in respect of the spouse who acted in good faith;
  • in respect of any child from this marriage, even if neither spouse acted in good faith.

Therefore, a marriage that is declared null and void never produces effects in respect of the spouse who did not act in good faith.

10. Are there alternative non judicial means for solving issues relating to the divorce without going to court?

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.

11. Where should I lodge my application (petition) for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?

  • Applications for divorce (fault divorce or legal separation) , legal separation or annulment must be submitted to the court of the district in which the spouses have their common domicile or, failing this, in which the respondent has their domicile, subject to compliance with the rules stipulated in the Brussels II Regulation (EC). The parties must act through a lawyer, except in the case of divorce by mutual consent, which can be requested either by a notary or by the parties themselves.

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.

TopTop

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.

  • As regards divorce by mutual consent, there are several stages in the procedure. If there is any property to be divided, the spouses must request that a notary draw up an inventory and estimate of all their movable and immovable goods. The spouses are totally free to agree on their respective rights to the goods in question. In addition, they must draw up an agreement concerning a number of arrangements, including the residence of the spouses during the proceedings, the administration of the person and property of the children, the visiting rights, the contribution of the spouses towards the maintenance and education of the children and any maintenance to be paid by one of the spouses to the other.

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.

TopTop

12. Can I obtain legal aid to cover the costs of the procedure?

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.

13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?

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.

14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in the Grand Duchy of Luxembourg?

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.

TopTop

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.

15. To which court should I turn to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?

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:

  • It is manifestly not in the public interest;
  • Failure to respect the rights of the defendant;
  • Incompatibility with a judgement given in related proceedings.

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.

16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in the Grand Duchy of Luxembourg or who are of different nationality?

Divorce and legal separation are governed by:

  • the national law of the spouses, if they have the same nationality;
  • the law of the effective common domicile of the spouses, if they have different nationalities;
  • Luxembourg law, if spouses of different nationalities do not have an effective common domicile.

Further information

« Divorce - General information | Luxembourg - General information »

TopTop

Last update: 03-08-2007

 
  • Community law
  • International law

  • Belgium
  • Bulgaria
  • Czech Republic
  • Denmark
  • Germany
  • Estonia
  • Ireland
  • Greece
  • Spain
  • France
  • Italy
  • Cyprus
  • Latvia
  • Lithuania
  • Luxembourg
  • Hungary
  • Malta
  • Netherlands
  • Austria
  • Poland
  • Portugal
  • Romania
  • Slovenia
  • Slovakia
  • Finland
  • Sweden
  • United Kingdom