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Divorce - Belgium

Please note that the original language version of this page Dutch has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS

1 What are the conditions for obtaining a divorce?

There are two kinds of divorce in Belgium: divorce on the grounds of the irretrievable breakdown of the marriage, and divorce by mutual consent.

A divorce on the grounds of the irretrievable breakdown of the marriage can be obtained in two ways:

  • by proof of the irretrievable breakdown of the marriage, which can be supplied by all legal means (Section 229(1) of the Civil Code (Code civil/Burgerlijk Wetboek)). The marriage is deemed to have suffered an irretrievable breakdown if the continuation of the cohabitation of the spouses and the resumption thereof has become impossible as a result of this breakdown.
  • on the basis of a de facto separation for a specific period of time. The marriage is deemed to have suffered an irretrievable breakdown if the application for divorce is submitted jointly by both spouses once their de facto separation has lasted longer than six months. If this de facto separation has lasted less than six months and the spouses wish to file a joint application for divorce, then the marriage will be deemed to have suffered an irretrievable breakdown if the spouses appear before the court a second time, following a period of reflection, and repeat their desire to be granted a divorce (Section 229(2) of the Civil Code). Unilateral application following de facto separation of more than a year: The marriage is deemed to have suffered an irretrievable breakdown if the application for divorce is filed by one single spouse following de facto separation of more than one year. If the de facto separation of the spouses has lasted less than a year and should a party wish to file a unilateral application, then the marriage is deemed to have suffered an irretrievable breakdown if the spouse filing the application appears before the court a second time, following a period of reflection, and repeats his/her wish to be granted a divorce (Section 229(3) of the Civil Code).
Divorce by mutual consent can be granted only if the spouses submit, jointly, an overall prior settlement relating to all the effects of the divorce and have the sustained wish, up to the point of the divorce judgment, to be granted a divorce by mutual consent. The overall prior settlement consists of a settlement deed in which the spouses must set out what they have agreed regarding their respective property rights (Section 1287 of the Judicial Code ( Code judiciaire/Gerechtelijk Wetboek)) and a family‑law agreement relating the place of residence of the spouses during the proceedings, parental responsibility and the management of the property of the children of both spouses, the right to contact during and after the divorce, the

2 What are the grounds for divorce?

There are two kinds of divorce in Belgium: divorce on the grounds of irretrievable breakdown of the marriage (Section 229 of the Civil Code) and divorce by mutual consent (Section 230 of the Civil Code).

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

3.1 the personal relations between the spouses (e.g. the surname)

Divorce breaks the bonds of marriage for the future. The former spouses are no longer each other’s legal heirs. The former spouses are permitted to remarry. In Belgium, marriage has no effect on the surname of the spouses. However, a spouse is entitled to use the other spouse’s surname. Following divorce, one is no longer permitted to make use of the name of a former spouse in everyday life and in professional life, with the exception of a trade name in certain circumstances.

3.2 the division of  property of the spouses

The joint property is dissolved. In the context of divorce on the grounds of the irretrievable breakdown of the marriage, the spouses lose all the benefits they conferred on one another in the marriage contract and since the marriage was entered into, and the benefit of any contractual testamentary dispositions, unless an agreement is made to the contrary. In the case of divorce by mutual consent, the spouses make arrangements regarding their mutual rights in advance in the overall prior settlement (see question 1).

3.3 the minor children of the spouses

The dissolution of the marriage by divorce has no effect on the rights of the children born of the marriage (Section 304 of the Civil Code). Following the dissolution of the marriage by divorce, authority over the child and administration of his/her assets is exercised either by the spouses jointly or by the person to whom they are entrusted by an approved agreement between the spouses or by order of the presiding judge delivering judgment in interlocutory proceedings (Section 302 of the Civil Code). The spouses must contribute, commensurately with their financial means, to the costs of accommodation, living expenses, supervision, upbringing and education of their children up to the age of majority of the child or the completion of their education (Section 203 of the Civil Code) and must contribute, in proportion to their share, to the ordinary and extraordinary costs resulting from these obligations (Section 203a of the Civil Code). Following a divorce, this contribution is usually made in the form of a maintenance contribution which is laid down either by way of a judgment or in an agreement.

3.4 the obligation to pay maintenance to the other spouse?

Divorce on the grounds of the irretrievable breakdown of the marriage: Spouses can conclude an agreement laying down any claims to a maintenance payment following divorce, the amount thereof and any possibilities for review. In the absence of an agreement, the court can, at the request of the spouse in need, authorise a maintenance payment to be borne by the other spouse. The court is permitted to refuse the request if the respondent proves that the applicant has committed a serious error which has made it impossible to continue living together. In no circumstances can a maintenance payment be granted to a spouse who has been found guilty of acts of physical violence committed against the other spouse. Where the respondent demonstrates that the applicant’s state of need is the result of his/her own decision that was not motivated by the needs of the family, the court is authorised to relieve the respondent her from the payment of a maintenance payment, and it may also reduce the amount thereof (Section 301(1-2) and (5) of the Civil Code). The level of the payment should, as a minimum, cover the state of need of the person entitled to the payment, but it may not be higher than one third of the income of the person obliged to make the payment. The duration of the payment may not be longer than the length of the marriage. This term may be extended in exceptional circumstances (Section 301(3-4), (6), (8-9) of the Civil Code).

Divorce by mutual consent: The spouses make arrangements with regard to their mutual rights in advance, in the overall prior settlement (see question 1). They are permitted to enter into an agreement with regard to the level of any maintenance payment during and after the divorce and with regard to the indexation and revision of this level (Section 1288(1)(4) of the Judicial Code).

In all cases, the maintenance payment can be increased, reduced or abolished by the court if the amount is no longer appropriate as a result of new circumstances, irrespective of the volition of the parties. Only in the event of divorce on the grounds of the irretrievable breakdown of the marriage can the court likewise adjust the payment if the divorce results in a change in the financial position of the spouses.

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

Legal separation does not result in the dissolution of the marriage, but loosens the mutual rights and obligations of the spouses: the duty to cohabit lapses and the property is separated.

5 What are the conditions for legal separation?

The grounds for a legal separation are the same as those for divorce.

6 What are the legal consequences of legal separation?

Legal separation does not result in the dissolution of the marriage, but loosens the mutual rights and obligations of the spouses. As regards the person of the spouses, legal separation revokes the cohabitation obligation and the maintenance obligation. The obligations of fidelity and mutual assistance remain in place (Section 308 of the Civil Code). As regards property, legal separation always results in the division of property (Section 311 of the Civil Code). As regards the children, the effects of legal separation are the same as those resulting from divorce. The spouses cannot receive maintenance payments following separation, but they can request the application of the obligation of mutual assistance (Section 213 of the Civil Code).

The effects of legal separation by mutual consent are the same as those resulting from divorce by mutual consent, and are governed by prior settlements, it being understood that the bond of marriage is not broken. The obligations of fidelity and mutual assistance likewise remain in place.

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

Marriage annulment is a penalty in civil law applied where a marriage is entered into in breach of the statutory provisions, in spite of the prior checks carried out by the registrar of births, marriages and deaths.

8 What are the conditions for marriage annulment?

The absolute grounds for invalidity of the marriage are:

  • A spouse is a minor and has not been released from the age requirement (Section 144 of the Civil Code): the minimum age to marry is 18 years;
  • Lack of consent (Section 146 of the Civil Code);
  • Sham marriage (Section 146a of the Civil Code): When an overall appraisal of the circumstances shows that the intention of at least one of the spouses was clearly not to enter into a permanent community but simply to obtain an advantage as regards a right of residence deriving from the state of marriage, then this does not constitute a marriage;
  • Forced marriage (Section 146b of the Civil Code): When marriage is entered into without the free consent of both spouses, and the consent of at least one of the spouses was given by force or by the threat of force, this does not constitute a marriage;
  • Bigamy (Section 147 of the Civil Code);
  • Breach of an impediment to a marriage on the basis of blood or family ties, or of a court ruling that a presumed natural father is subject to maintenance payments, or an adoptive family relationship (Sections 161-164, 341, 356-1(1) and (2) and 353-13 of the Civil Code);
  • Lack of authority of the public official who solemnised the marriage (Section 191 of the Civil Code) (discretionary absolute invalidity);
  • Clandestine marriage (Section 191 of the Civil Code) (discretionary absolute invalidity).

There is one ‘relative’ relative ground for annulment, namely an error as to the person constituting a lack of consent of one or both spouses (Section 180-181 of the Civil Code).

9 What are the legal consequences of marriage annulment?

Annulment of the marriage means that it is null and void in respect both of the past and of the future. The annulment has retroactive effect to the date of the solemnisation of the marriage. The effects of the marriage are reversed retroactively. The marriage is deemed never to have taken place.

Where the spouses married in good faith, particularly in the belief that they were entering into a valid marriage, the court can rule that the marriage is annulled only in respect of the future, while the effects for the past are to remain in place. Where only one spouse married in good faith, the marriage has effect only for the benefit of this spouse.

The marriage retains its effects for the benefit of the children, even in cases where neither of the two spouses married in good faith. Any children born during the marriage or within 300 days of the annulment of the marriage keep the spouse in the annulled marriage as their father.

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

The law provides for two forms of mediation: voluntary mediation, where parties engage the services of a mediator themselves, without the intervention of a court, and judicial mediation, in the context of judicial proceedings, at the suggestion of the parties or the court, with the judicial proceedings being suspended. Mediation can be employed in disputes relating to marriage obligations (Sections 203-201 of the Civil Code), the rights and obligations of spouses (Sections 212-224 of the Civil Code), the effects of divorce (Sections 295-307a of the Civil Code), parental authority (Sections 371-387a of the Civil Code), divorce on the grounds of the irretrievable breakdown of the marriage (Section 229 of the Civil Code), divorce by mutual consent (Sections 1254-1310 of the Judicial Code) and de facto cohabitation. Each party can voluntarily enter into (voluntary) mediation (Section 1730 et seq. of the Judicial Code). The court seised can also recommend judicial mediation at any time and at any stage in the proceedings (Sections 1734 et seq. of the Judicial Code). Where the parties come to a conciliation agreement in either kind of mediation , the agreement can be submitted to the competent court for approval. Approval may be refused only if the conciliation agreement is contrary to public order or to the interests of the minor children.

The pronouncement of the divorce itself remains the responsibility of the courts.

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?

Divorce/legal separation on the grounds of the irretrievable breakdown of the marriage or an application to convert a legal separation into a divorce: court of first instance of the place of the last marital residence or of the respondent’s place of residence (Section 628(1)(1) of the Judicial Code).

Divorce by mutual consent: court of first instance, at the option of the spouses (Section 1288a(2) of the Judicial Code).

Annulment of the marriage: court of first instance of the respondent’s place of residence (Section 624 of the Judicial Code).

Divorce on the grounds of the irretrievable breakdown of the marriage: 1. application pursuant to Section 229(1) of the Civil Code in the event of a bailiff’s notification; 2. joint application pursuant to Section 229(2) of the Civil Code by way of a unilateral application in accordance with Section 1026 et seq. of the Judicial Code signed by each spouse or at least by a lawyer or notary (Section 1255(1) of the Judicial Code); 3. unilateral application pursuant to Section 229(3) of the Civil Code in the case of a contrary application in accordance with Sections 1034a-e of the Judicial Code: In all cases, the document instituting the proceedings must contain, in addition to the usual statements required, a statement regarding the identity of the children and a detailed description of the facts (Section 1254(1) of the Judicial Code). An extract from the marriage certificate, an extract from the children’s birth certificates and proof of identity and nationality of each of the spouses unless they appear in the National register or the aliens’ register are also submitted (Section 1254 of the Judicial Code).

Divorce by mutual consent: in the case of an application (Section 1288a of the Judicial Code). In addition to the documents that are requested in the context of a divorce on the grounds of the irretrievable breakdown of the marriage, the settlements concluded in advance and, where appropriate, the estate inventory must be submitted.

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

The regulations pertaining to civil law apply. See the factsheet on ‘Legal aid’ (link)

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

An appeal against a judgment pronouncing or refusing a divorce/legal separation on the grounds of the irretrievable breakdown of the marriage or the annulment of the marriage can be brought within the month following a ruling made in the absence of one of the parties or after full argument on both sides (Section 1048(1) and 1051(1) of the Judicial Code).

An appeal against a ruling pronouncing a divorce/legal separation by mutual consent can be brought only by the Public Prosecution Service, within a month of the ruling (Section 1299 of the Judicial Code). An appeal against a ruling refusing a divorce/legal separation by mutual consent can be brought by either party separately or both parties together together within a month of the ruling (Section 1300 of the Judicial Code).

14 What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognized in this Member State?

Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility has been in force since 1 March 2005 (Brussels IIa Regulation). This Regulation applies within the European Union (with the exception of Denmark). A divorce judgment pronounced in one Member State is automatically recognised in the other Member States without any special procedure being required (Article 21(1), Brussels IIa). No special procedure is required for updating the civil‑status records of a Member State in accordance with a divorce judgment given in another Member State, once no further appeal can be brought against this judgment (Article 21(2), Brussels IIa). A judgment with regard to divorce, legal separation or annulment of the marriage will not be recognised where the recognition would be manifestly contrary to public policy, where the it was given in default of appearance if the defaulting respondent was not served with the document instituting court proceedings in sufficient time and in such a way as to enable that party to arrange his or her defence or where the judgment is irreconcilable with an earlier judgment given in proceedings between the same parties (Article 22 Brussels IIa). In the court proceedings the jurisdiction of the original court cannot be reviewed (Article 24 Brussels IIa) and in no circumstances may the judgment be reviewed as to its substance (Article 26 Brussels IIa). In addition, recognition cannot be refused on the ground that Belgian law would not allow divorce on the same facts (Article 25 Brussels IIa). The documents that are to be submitted for the purposes of recognition of a foreign court decision can be found in Section 37 Brussels IIa.

When Council Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa) does not apply, the provisions of the International Private Law Code (Code de droit international privé/Wetboek van Internationaal Privaatrecht) applies to judgments made after 1 October 2004 (Section 126(2) of the International Private Law Code). Pursuant to Section 22 of the Code, the recognition is effected as a matter of course, without the need for legal proceedings. A foreign court decision will not be recognised where it is manifestly contrary to public policy, where it represents an infringement of the rights of the defence, where it circumvents the law, where the decision can still be appealed, where the decision is incompatible with a Belgian decision or with a decision taken abroad that can be recognised in Belgium, where the proceedings abroad were instituted following the institution in Belgium of proceedings that are still pending between the same parties and relating to the same subject, where the Belgian courts had sole jurisdiction to hear the proceedings, where the jurisdiction of the foreign court was based solely on the presence in the country to which this court belongs of the respondent or of property without any direct connection with the dispute, or where a conflict exists with one of a number of grounds for refusal exhaustively listed in the Code (in the area of the law of the person and of the family, the only grounds concern name, adoption and repudiation) (Section 25(1) of the Code). The foreign decision may not be fundamentally reviewed in the court proceedings (Section 25(2)). The documents that are to be submitted for the purposes of recognition of a foreign court decision can be found in Section 24 of the Code.

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?

The fundamental principle of both Council Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa) and the International Private Law Code is that of automatic recognition, without any form of special procedure. However, where the recognition takes place pursuant to the Brussels IIa Regulation, any interested party is permitted to apply for a decision that the judgment should be or should not be recognised in accordance with the proceedings in Section 2 before the court of first instance (Article 21(3), Brussels IIa). Where the Brussels IIa Regulation does not apply, any person who has an interest can also refer the matter to the Public Prosecution Service in the manner set out in Section 23 of the International Private Law Code to decide whether or not the court decision should be recognised, in whole or in part (Section 22(2) of the International Private Law Code).

16 Which divorce law does the court apply in a divorce proceeding between spouses who do not live in this Member State or who are of different nationalities?

Section 55(1) of the International Private Law Code includes the rules governing the choice of law for divorces/legal separations with an international aspect. Divorce and legal separation are be governed:

1. by the law of the country in the jurisdiction of which the two spouses have their habitual residence at the time of filing of the application;

2. in the absence of a habitual residence in the territory of the same country, by the law of the country in the territory of which the spouses had their last common habitual residence where one of them has his/her habitual residence in the territory of this country at the time of filing of the application;

3. in the absence of a habitual residence of one of the spouses in the territory of the country where the last common habitual residence was located, by the law of the country whose nationality each of the spouses has at the time of filing of the application;

4. in other cases, by Belgian law.

The expression ‘habitual residence’ is explained in Section 4(2) of the International Private Law Code. ‘Common habitual residence’ does not necessarily mean residence at the same address or in the same municipality, but rather residence in the same country. The application of the law designated by Section 55(1) of the International Private Law Code is excluded in so far as this law does not relate to the institution of divorce. In this case, the law that is applied is that designated on the basis of the criterion set out in the alternative in subsection 1 (Section 55(3) of the International Private Law Code).

Spouses also have a limited opportunity to choose the applicable law themselves: the law of a country of which the two spouses are nationals at the time the proceedings are brought, or Belgian law (Section 55(2) of the International Private Law Code). A choice must be expressed at the first appearance.

The applicable law designated by Section 55 of the International Private Law Code covers the regulations concerning the admissibility of the legal separation; the reasons for and the conditions of the divorce or legal separation or, in the case of a joint application, the conditions for consent, including the way in which it is to be expressed; the obligation for the spouses to reach a settlement on the measures relating to the person, maintenance and the property of the spouses and of the children for whom they are responsible and the regulations relating to the dissolution of the bonds of marriage or, in the event of separation, the loosening of these bonds (Section 56 of the International Private Law Code).


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Last update: 18/07/2014