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Belgium considers allowing extrajudicial divorce to ease burden on family courts

14:16 09/03/2022

Belgium’s Justice Commission heard testimony from experts on Tuesday regarding a bill aimed at allowing the civil registrar to declare divorce on the grounds of irremediable disunity, intended to lighten the workload in overwhelmed family courts. 

But while many agreed that some procedures could be simplified in order to ease the burden on the courts, others were staunchly opposed, Le Soir reports. 

In 1960, the Belgian divorce rate was less than 7%, before gradually increasing to about 20% in 1980, 30% in 1990 and 45.7% in 2000, according to the bill, which was tabled by MP Kristien Van Vaerenbergh (N-VA).

The rate has continued to increase, according to Belgian statistical office Statbel, and today almost one in two marriages ends in divorce.

The result is that it’s becoming increasingly difficult in some family courts to deal with so many cases. Back in November, Le Soir reported that some urgent hearings in the French-speaking family court of Brussels were delayed for a year.

Increasing divorce rates put pressure on courts

According to the Belgian civil code, divorce is pronounced when the judge notes the “irremediable disunion” between the spouses, meaning the disunity makes it reasonably impossible for the couple to continue living together.

This is often used in cases of infidelity, addiction or other such issues. It’s also employed in circumstances when the application is made jointly by both spouses after more than six months of separation, or by only one of them after one year of separation. 

“In a number of cases, the family court simply establishes that the spouses have not been living together for some time,” the bill under review states. 

“If proof of this is provided by means of an entry in the population register, the family court no longer has its own discretionary power and, under these circumstances, proceedings before the family court are superfluous.”

The proposal aims to ensure that certain divorces due to irremediable disunity can therefore be settled by the civil registrar, leaving the family court more time to “devote itself to other cases in which it has to assess a concrete situation,” the proposal states, citing the accommodation of children as an example of such cases.

Critics say the bill currently under consideration is flawed

But the Groupement des agents de la Population et de l'Etat civil (GAPEC), which shared its opinion in committee on Tuesday, was sceptical. 

“We have the impression that the federal government wants to hand over to us what the judges no longer want to do,” said GAPEC president Danielle Adriaenssens. 

“It will be additional work, and everything will fall on the shoulders of the municipalities; we already have problems with pension contributions and we have to cut costs... What about the additional staff that will be needed? What about the training of the staff?”

Adriaenssens said that there were also “more and more people of different nationalities, for whom private international law must be applied,” meaning the application of the law was far from simple. 

Marina Blitz, a family lawyer who has been examining the bill for Avocats.be, said that while “there is a need for a societal and political debate on extrajudicial divorce,” the bill being considered needed to be better formulated and should not forget “that the litigants would be left to their own devices without the possibility of collecting prior information on the consequences of a divorce”.

Nevertheless, extrajudicial divorce is already a reality in Europe, with several countries already adopting legislation to permit it. If the bill currently on the table is not passed, it seems likely more debate and another draft will follow. 

 

Written by Helen Lyons