Divorce - Luxembourg
TABLE OF CONTENTS
- 1 What are the conditions for obtaining a divorce?
- 2 What are the grounds for divorce?
- 3 What are the legal consequences of a divorce as regards:
- 4 What does the legal term “legal separation” mean in practical terms?
- 5 What are the conditions for legal separation?
- 6 What are the legal consequences of legal separation?
- 7 What does the term “marriage annulment” mean in practice?
- 8 What are the conditions for marriage annulment?
- 9 What are the legal consequences of marriage annulment?
- 10 Are there alternative non-judicial means for solving issues relating to the divorce without going to court?
- 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?
- 12 Can I obtain legal aid to cover the costs of the procedure?
- 13 Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?
- 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?
- 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?
- 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?
1 What are the conditions for obtaining a divorce?
Luxembourg law provides for two main types of divorce: divorce by mutual consent (par consentement mutuel) and divorce for cause shown (pour cause déterminé). In the case of divorce for cause shown, a distinction is made between divorce on grounds of physical violence or moral cruelty, commonly referred to as divorce on grounds of fault (pour faute), and divorce on grounds of de facto separation for a certain period.
2 What are the grounds for divorce?
- 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 23 years old.
If the spouses have property to be divided, a notary has to draw up an inventory and estimate its value. They are then free to settle their respective rights to the property concerned. If, however, there is no property requiring an inventory, the services of a notary are not required.
The spouses must also agree on where they will live during the proceedings, on the arrangements for their children during and after the proceedings, on the contribution that each spouse will make to the upbringing and maintenance of children before and after the divorce and, finally, on the amount of any maintenance payments that one spouse will make to the other during the proceedings and after the divorce has been granted. This agreement must be in the form of a document signed by both spouses.
- Divorce on grounds of physical violence or moral cruelty (referred to as divorce on grounds of fault)
Divorce on grounds of fault is subject to proof of physical violence (excès et sévices) or moral cruelty (injures graves) 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, they must also make the continuation of married life intolerable.
- Divorce on grounds of de facto separation
Spouses can request a divorce on grounds of separation in the following cases:
- continuous de facto separation for at least three years, if it is apparent that the breakdown of the marriage is irretrievable;
- de facto separation for over five years as a result of an apparently incurable state of mental disorder of the other spouse, if it is apparent that the breakdown of the marriage is irretrievable.
The court can dismiss an application for divorce if it decides that the divorce would have exceptionally detrimental financial or psychological consequences for the respondent or for any children.
3 What are the legal consequences of a divorce as regards:
3.1 the personal relations between the spouses (e.g. the surname)
The divorce decree dissolves the marriage and ends the spouses’ mutual obligations of fidelity, support and assistance.
Under Luxembourg law, no person may use a name or forename other than those shown on their birth certificate: anyone who has ceased using them must resume them. A change of civil status, for instance by marriage, does not therefore entail a change of name by either of the spouses. Taking the name of a spouse is not an acquired right. The other spouse must agree to the use of their name.
The Luxembourg courts have ruled on the effect of divorce on the name a person uses:
A divorced woman may continue to use her former husband’s surname only if he authorises her to do so; he may withdraw that authorisation at any time. The former husband is entitled to object to the use of his surname entirely at his discretion, so that the courts cannot authorise a divorced wife to continue to use her husband’s surname for an unlimited period, even for professional reasons, if the husband objects to such use. The court may, in view of the reputation that the wife has gained in her profession under her husband’s surname and in order to prevent any financial damage, give her a time limit for informing her customers of her own name – Cour 24 May 2006, P. 33, 258.
If the divorce is granted on the grounds of physical violence or moral cruelty, the spouse losing the case forfeits all the marital benefits (avantages matrimoniaux) that their spouse has given them under the terms of the marriage contract or since the date of the marriage. ‘Marital benefits’ here means any gifts that the spouses have made to each other during the marriage (e.g. under the marriage contract or by a separate act). Marital benefits do not, however, include customary gifts, or legacies left by will prior to the marriage. If a divorce is granted against both spouses on grounds of mutual fault, they will both be deprived of their rights. An innocent spouse will, however, retain any benefits granted by their spouse.
3.2 the division of property of the spouses
The divorce decree orders the liquidation and division of the marital property of the spouses. If there is no marriage contract the system that applies is the statutory community of marital property under which joint ownership extends only to acquisitions after the marriage. Divorce dissolves the community of marital property. In the division of property there are two main stages:
- First, each of the spouses takes back any property that was never owned jointly, if it is in kind, or any assets that have replaced that property.
- Second, the joint estate (assets and liabilities) is liquidated. For each spouse a statement is drawn up of what the joint estate owes to him or her and what he or she owes to the joint estate.
3.3 the minor children of the spouses
See ‘Parental responsibility – Luxembourg’.
3.4 the obligation to pay maintenance to the other spouse?
See ‘Maintenance claims – Luxembourg’.
4 What does the legal term “legal separation” mean in practical terms?
In all cases where a spouse may apply for divorce for cause shown, they are free to apply either for divorce or for legal separation.
Legal separation loosens the marital ties, but does not dissolve them: the spouses no longer have to live together, but they continue to have duties of fidelity and support towards one another. Consequently, adultery by either of the spouses continues to be a fault, and may constitute grounds for divorce.
5 What are the conditions for legal separation?
The grounds for legal separation are identical to those for divorce for cause shown.
6 What are the legal consequences of legal separation?
Legal separation always entails the separation of property. 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?
A marriage may be annulled on several grounds:
- The marriage was contracted without the free consent of the spouses. This is the case if there was violence, or if the person concerned was mistaken as to an essential personal prerequisite of the other party.
- The marriage was contracted without the consent of the father and mother, of the relations in the ascending line, 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 another person.
- The formal requirements for the marriage were not met: the marriage was not publicly contracted, or was celebrated before a person who was not a properly authorised public officer, or the formalities for the publication of banns were not observed.
9 What are the legal consequences of marriage annulment?
A marriage that is annulled nevertheless has legal effects (this is known as the ‘putative marriage’ theory (mariage putatif)):
- in respect of both spouses, if they contracted the marriage in good faith;
- in respect of one spouse who acted in good faith;
- in respect of any child of the marriage, even if neither spouse acted in good faith.
A marriage that is annulled never has legal effects in respect of a 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 Luxembourg, marriages may be dissolved only by court decision, and never by alternative non‑judicial methods or by mediation. Family mediation may be used, however, for matters connected with the liquidation and division of the joint property, maintenance obligations and contributions to the costs of the marriage, obligations to maintain children, or the exercise of parental authority.
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 (on grounds of fault or on grounds of de facto separation), for legal separation or for annulment must be submitted to the District Court of the place where the spouses have their common domicile or, failing this, in which the respondent has their domicile, subject to compliance with the rules laid down in Regulation (EC) No 1347/2000. Representation by a full lawyer (avocat à la cour) is compulsory; this does not apply in the case of divorce by mutual consent, which can be requested by a notary or by the parties themselves.
- The case is submitted, examined and judged according to normal procedures, after consulting 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 the identity of any under-age children who are not married or released from parental authority. The summons must be served upon the respondent by a bailiff. The applicant must attach a copy of the marriage certificate and the birth certificates of any children.
- The summons can also contain applications for interim measures concerning the person, maintenance and property of the parties and of their children. In this instance, the case may also be heard by the president of the court or his replacement, ruling in summary proceedings.
- In the procedure for divorce by mutual consent there are several stages. If there is any property to be divided, the spouses must ask a notary to draw up an inventory and estimate of all their movable and immovable property. The spouses are completely free to agree on their respective rights to the property in question. In addition, they must draw up an agreement concerning various arrangements, including the residence of the spouses during the proceedings, the administration of the person and property of any children, access rights, the contribution of the spouses towards the upbringing and maintenance of any 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 agreement mentioned above and the notarial deed documenting the division of property. The spouses must appear before the president of the court for a second time six months after their first appearance and restate their intention to have the marriage dissolved. Once the public prosecutor has presented his pleadings, the court grants the divorce if the above conditions are met, and if not refuses to grant the divorce.
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 are eligible for legal aid. To receive this aid, they must fill in a questionnaire that can be obtained from the Central Social Assistance Service (Service central d’assistance sociale) and send it to the president of the bar association (Bâtonnier de l’Ordre des avocats) of the place, who will take the decision.
Legal aid covers all the costs connected with 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’ expenses and fees, notaries’ expenses and fees, technicians’ expenses and fees, witness allowances, and translators’ and interpreters’ fees; fees for certificates stating the position in foreign law (certificats de coutume); travelling expenses; duties and fees relating to formalities for registration, mortgage and encumbrance; and where necessary costs for notices in newspapers.
13 Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?
It is possible to appeal against this kind of decision in Luxembourg. In principle, the period for the appeal is 40 days, but it may be extended if the applicant is resident abroad. The competent court for any appeal is the Supreme 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 recognized in this Member State?
In accordance with Regulation (EC) No 1347/2000, judgments regarding divorces, legal separations or marriage annulments given by the court of another Member State of the European Union are automatically recognised. No steps need to be taken to obtain recognition of a decision.
No preliminary procedure is required for the correction of civil records in Luxembourg following a judgment given by a court of a Member State of the European Union that has become res judicata. A reference to the decision of the court granting the divorce must be entered in the margin of the marriage certificate and 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 entered, or in the civil registers of the city of Luxembourg, and a reference also has to be entered 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 for a decision refusing to recognise 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 rules without delay; the person against whom the decision to refuse recognition is requested may not submit any observations at this stage in the proceedings. Recognition of the foreign judgment may be refused only on the following grounds:
- it is manifestly contrary to public policy;
- the rights of the defence have not been respected;
- it is incompatible with a judgment given in related proceedings.
Either party may appeal to the court of appeal against the decision of the President of the District Court. At the appeal stage both parties must be heard. The decision of the court of appeal may be appealed on points of law before the Court of Cassation.
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?
Divorce and legal separation are governed by:
- the national law of the spouses, if they have the same nationality;
- the law of the actual common domicile of the spouses, if they have different nationalities;
- Luxembourg law, if spouses of different nationalities do not have an actual common domicile.
Council Regulation (EC) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation applies from 21 June 2012 between Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain; it states that the spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following:
- the law of the State where the spouses are habitually resident at the time the agreement is concluded; or
- the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or
- the law of the State of nationality of either spouse at the time the agreement is concluded; or
- the law of the forum.
Without prejudice to the preceding paragraph, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized.
If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation must be recorded in court in accordance with the law of the forum.
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Last update: 29/02/2016