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“Maintenance obligation can be defined as the obligation that is imposed by law on an individual to provide another person who is in need and is attached by a “determined family” link with the means of subsistence. “Maintenance” covers not just food, but everything necessary for living: food, clothing, housing, medical care, etc.
The maintenance allowance is based on a family or marital connection or on a substitute obligation when this connection is broken. It exists between certain relatives by blood or marriage, between spouses and legal cohabitors. It is based, as it were, on a duty of “solidarity” that may be stronger in certain cases.
There are two types of maintenance claim in this case:
The maintenance allowance that operates for parents with regard to their children (section 205 of the Civil Code) is reciprocal. Children thus owe maintenance to their father and mother if they are in need.
Maintenance allowances between spouses are based on a duty to provide help and assistance and the duty to contribute to the marriage expenses provided for by the Civil Code (sections 213 and 221 of the Civil Code). These duties, linked to the duty of cohabitation which also applies to spouses, are reciprocal. If they are not performed, they may give rise to legal action to obtain their equivalent performance in kind, in the form of maintenance or assignment of sums – see question 12 – (sections 213, 221 and 223 of the Civil Code).
A distinction needs to be made with regard to the type of divorce: divorce on particular grounds or divorce by mutual consent:
During proceedings for divorce on particular grounds (divorce due to adultery, excessive behaviour, physical or mental cruelty or serious offence and following actual separation for more than two years) , either spouse may ask the courts to take provisional measures and introduce a maintenance provision regardless of fault (section 1280 of the Judicial Code).
After a divorce on grounds of adultery, excessive behaviour, physical or mental cruelty, the innocent spouse may ask the courts for an allowance to help him/her to carry on living in equivalent conditions to the ones enjoyed during the life of the couple (section 301 of the Civil Code).
After a divorce on grounds of separation for more than two years, the petitioning spouse is presumed to be responsible for the separation. Only the defendant spouse can claim a maintenance allowance. The petitioning spouse may, however, reverse the presumption affecting him/her (section 306 of the Civil Code).
It is up to spouses who have decided to divorce by mutual consent in their agreements prior to divorce to fix the amount of the allowance, if any, that one of the spouses will pay the other during the proceedings and thereafter (section 1288 of the Judicial Code).
In which cases?
The maintenance allowance exists between direct line relatives, both ascendants and descendants (parents/children, children/parents, grandchildren/grandparents and reciprocally – sections 205 and 207 of the Civil Code).
There are two cases between people related by marriage:
In certain circumstances, the deceased husband’s estate owes maintenance to the deceased person’s surviving partner or ascendants (section 205 b of the Civil Code).
A child whose paternity is not established can claim an allowance for his upkeep, upbringing and education from the man who had relations with his mother during the legal conception period (section 336 of the Civil Code).
If harmony between legal cohabitors is seriously perturbed, one party may ask the Justice of the Peace for maintenance, as part of the temporary measures that he may decide to take. The same applies as part of temporary measures if legal cohabitation ceases (section 1479 of the Civil Code).
The maintenance allowance normally ceases when the child reaches majority or emancipation. However, it may continue if the child’s education has not been completed (sections 203 and 336 of the Civil Code).
Belgium acceded to the Hague Convention of 24 October 1956 on the law applicable to maintenance obligations. In principle, the Convention, which only applies between contracting States, submits maintenance claims for children to the law that applies in the state in which the maintenance claimant normally lives (article 1).
However, Belgium may declare its law applicable if the child’s residence abroad is the only element of alien status in the relationship (article 2). Belgian law therefore governs any action taken in Belgium by a Belgian child living abroad against a Belgian father living in Belgium.
Belgian law also applies if the law that applies in the state in which the child is living refuses him/her any right to maintenance (article 3).
Apart from the cases referred to in the abovementioned convention, the rules of Belgian private international law apply (section 3(1) or (3) of the Civil Code). Either Belgian law applies to any maintenance claimant in Belgium, or the maintenance allowance comes under the interested parties’ national law (subject to international public order and the urgency with which a ruling is required).
If the person requesting “maintenance” and the person due to pay are both on Belgian territory:
They may be a revoi to foreign law in certain cases, in accordance with the rules of Belgian private international law. In other cases, Belgian law will be said to apply.
The debtor may provide for the claimant’s needs voluntarily. Otherwise, if there is a dispute, disagreement or cessation, legal action is necessary.
The action is personal to the maintenance claimant. The petition is presented to the magistrate by the petitioner in person or by his/her lawyer (especially sections 1253 c, 1254 and 1320 of the Judicial Code).
If the claimant is incapable, the legal representative (father, mother, guardian, etc.) acts in his/her name.
The Justice of the Peace has general jurisdiction in disputes over maintenance allowances (section 591(7) of the Judicial Code) but there are exceptions.
Proceedings taken by a child against the person who had relations with his mother during the legal conception period (section 336 of the Civil Code) come under the magistrates’ court (section 338 of the Civil Code).
During divorce proceedings or separation proceedings on particular grounds, provisional measures relating to the individual, maintenance and spouses’ and children’s possessions come under the jurisdiction of the President of the magistrates’ court, who makes a summary judgement (section 1280 of the Judicial Code). During the introductory proceedings for the divorce proceedings, the judge can ratify a partial or full agreement between the spouses concerning the provisional measures relating to their maintenance and/or the maintenance of the children (section 1258(2) of the Judicial Code). If there are no subsequent changes, the provisional measures taken for the children continue to apply after the divorce (section 302 of the Civil Code).
With regard to the fixing of the maintenance allowance after the divorce (sections 301, 306, 307 and 307 b of the Civil Code) , the competent authority is the Justice of the Peace or the court to which the divorce petition has been referred, depending on the stage of the divorce. After the final ruling pronouncing the divorce, only the Justice of the Peace is competent.
In the event of divorce or separation by mutual consent, the parties use a prior agreement to settle the maintenance contribution for the children and any maintenance allowance to be paid by one spouse to the other. The Justice of the Peace is competent to decide on any changes concerning maintenance for the children. But it is accepted that the juvenile court, which can order or modify any provisions relating to parental authority (section 387 b of the Civil Code) , may at the same time rule on maintenance for the children.
See question 6. Depending on which proceedings have been undertaken, the request is presented by bailiff’s summons or by petition. A lawyer does not have to be involved.
Legal proceedings have to be paid for. It is not possible to calculate total costs, which will depend on the type of proceedings undertaken, legal fees and defence fees if a lawyer is involved. The ordinary law applies to the payment of legal fees via legal aid (See “Legal aid - Belgium”).
Assistance takes the form of a maintenance allowance. In certain cases, this allowance may be capitalised (section 301(5) , of the Civil Code).
There is no scale. Maintenance is only granted in proportion to the need of the person claiming it and the wealth of the person who owes it (sections 208 and 209 of the Civil Code).
The father’s and mother’s maintenance allowance (section 203 of the Civil Code) is fixed in proportion to the latters’ capabilities, and this obligation must cover the children’s accommodation, upkeep, supervision, upbringing, and education (until education is completed). The allowance takes the form of an inclusive monthly payment to the parent who has custody. Each mother and father may act in his or her own name to claim a contribution from the other for accommodation, upkeep costs, etc. (section 203 b of the Civil Code).
The amount of the allowance to be paid by the person who had sexual relations with the child’s mother during the legal conception period is fixed according to the child’s needs and the debtor’s resources, opportunities and social situation (section 336 of the Civil Code).
The maintenance allowance after a divorce on particular grounds must allow the recipient, bearing in mind his/her income and opportunities, to live in conditions equivalent to those enjoyed during married life (section 301(1) of the Civil Code). It is automatically linked to the retail price index (section 301(2) ). It may not exceed one-third of the debtor spouse’s income. With regard to maintenance allowance granted after a divorce due to actual separation for over two years, section 307 b of the Civil Code states that maintenance allowance may exceed one-third of the debtor spouse’s income (contra, rulings 48/2000 and 163/2001 given by the Court of Arbitration). In the event of divorce by mutual consent, the spouses decide on the allowance to be paid by one to the other and how it will adapt to the cost of living (section 1288(4) of the Judicial Code).
As stated in 1 above, maintenance allowances between spouses are based on the duty to provide help and assistance and on the duty to contribute to the costs of the marriage as provided for by (sections 213 and 221 of the Civil Codes).
The allowance is paid to the maintenance claimant or his/her representative. It takes the form of a monthly payment. It may also be capitalised in certain cases.
A claimant who has a writ of execution can take action to enforce payment of the debt. Under certain conditions, a maintenance debtor who does not abide by the decision fixing maintenance may have his/her property or goods seized (section 1494 of the Judicial Code). A garnishee order may be addressed to a third party, such as the debtor’s employer (section 1539 of the Judicial Code). Also, under certain conditions, a maintenance claimant who does not yet have a writ of execution may take out a sequestration order to guarantee his/her rights to future maintenance payments (section 1413 of the Judicial Code).
Finally, a simplified execution mechanism has been introduced. This refers to the delegation of sums, either an authorisation given to the maintenance claimant, within certain limits, to be paid directly from the debtor’s income or any other sum due from a third party. The delegation of sums applies to legal maintenance allowances between spouses or former spouses (sections 220, §3, 221, 223, 301 b of the Civil Code, 1280 and 1306 of the Judicial Code) , upkeep, upbringing and education obligations towards the children – also petitions between father and mother provided for in section 203 b of the Civil Code - and legal maintenance claims between ascendants and descendants (section 203 ter of the Civil Code).
Finally, the Criminal Code contains an article relating to the abandonment of the family (section 369 b) which allows for proceedings to be taken out against anyone who has been ordered by a final court ruling to pay a maintenance allowance, and who has deliberately not complied with the terms of the order for more than two months.
A maintenance claimant who does not manage to obtain payment despite going through the procedures set out in 12, may contact the Maintenance Claims Department (within the ‘Service Public Fédéral Finances’) when this Department has been put in place. The department will be responsible for allocating advances relating to one or more fixed maintenance allowance payments and for receiving or recovering the advances granted, along with the maintenance allowance balance and arrears due from the maintenance debtor.
In the meantime, the maintenance claimant should contact the ‘Centre Public d’Aide Sociale’ (CPAS) which may allocate advances on one or more fixed, consecutive maintenance allowance payments (section 68 b of the Act of 8 July 1976 setting up the CPAS). However, this concerns only child allowances and the child claimant must reside in Belgium.
The C.P.A.S. may substitute for the debtor in order to pay the allowance, or part of the allowance in his/her place by paying a welfare payment. The money will be recovered from the debtor unless he/she does not have the financial resources.
If the petitioner is in Belgium and the debtor is resident in another country, the petitioner who has the benefit of a maintenance order may obtain assistance from the Belgian authority:
‘Service Public Fédéral Justice – Direction générale de la Législation and des Libertés and Droits fondamentaux’:
This authority intervenes under the New York Convention of 20 June 1956 with regard to the recovery of maintenance abroad, approved by the Act of 6 May 1966, and as the expediting authority for Belgium.
Convention de New York
Boulevard de Waterloo, 115
Tel.: +32 (0) 2/542. 65. 11
Fax: +32 (0) 2/542. 70. 06
If the petitioner is in another country and the person bound by a maintenance claim is in Belgium, the New York Convention stipulates that the intermediary Authority (Belgian in this case) takes all steps on behalf of the claimant to recover the maintenance payments. It must first locate the debtor and try to obtain an amicable agreement, in collaboration with the legal Authorities. If such an agreement cannot be obtained, or if it is not complied with, the intermediary Authority, on behalf of the claimant and possibly having requested free legal aid, institutes proceedings to obtain a maintenance allowance and makes sure that the ruling is carried out.
A petitioner who is resident in a country other than Belgium must contact the central Authority responsible for the abovementioned Convention. The petitioner may not directly contact an organisation or authority in Belgium.
If no, see question 18.
If no, see question 18.Top
Last update: 30-03-2006