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Till divorce us do part

11:45 13/03/2012

An overview of how to survive separation in Belgium

The breakdown of a marriage is one of life’s most stressful experiences. For expats, it can be the most stressful. Even for those who married outside Belgium, local divorce laws can apply, and the implications are far-reaching: they can affect one’s legal right to remain in the country, to work here and to have custody over children. Here we look at the basics of divorce in Belgium, but we recommend seeking professional advice.

1. Mediator, lawyer, notary

Legal counsel is not mandatory. An individual or couple can introduce divorce proceedings, but professional help is recommended: there’s a lot of paperwork. Mediators and specialist companies exist for couples seeking a consensual no-fault divorce. When one partner seeks legal advice, a letter is sent to the other party inviting them to take legal representation. In many cases each spouse has his/her own lawyer to guide and defend their individual interests. Many expats ‘shop around’ until they find a lawyer they feel comfortable with and trust.

Foreigners living in Belgium may obtain a divorce under Belgian law if their home country recognises Belgian divorce law. Some couples return to their home country to divorce in order to circumvent Belgian rules governing child custody, for example. The role of a lawyer is different from that of a notary. A notary’s services are obligatory for the division of property. A notary can also file the divorce request: notaries are said to defend the interests of the whole family and to play an impartial and mediatory role. Information can be obtained from the notary free of charge.

2. No-fault divorce

The no-fault divorce obtained consensually (EOT) or unilaterally (EOO) is based on the irretrievable breakdown of a marriage. If both partners agree, they can be divorced if they have lived apart for a minimum of six months. This type of divorce accounts for the majority of cases in Belgium. If a request for no-fault divorce is filed before a couple has lived apart for six months, they must appear in court twice within a six-month period before the divorce is granted. If the couple can prove that they had lived apart for more than six months when the divorce request was introduced, they do not have to appear in court a second time. If only one of the spouses wants a divorce and the couple has lived apart for at least one year, the divorce can be granted immediately. The fastest divorce is by mutual consent but the speed of the act depends on agreement of the salient points. The spouses must agree on the disposition of mutual property, child custody, child support and alimony, and on where each party will live during the divorce proceedings.

3. Fault divorce

There are three ways of obtaining a divorce on grounds of irreconcilable differences: by proving the irretrievable breakdown (court summons necessary); joint request for the divorce; and unilateral request. A marriage is considered to have broken down irretrievably (EPO) when a couple has been living separately for more than a year. If the couple makes a joint request, a separation of six months will suffice. Alternatively, adultery, violence or other factors may be offered as demonstrations of irreparable division. Legal proof must be submitted in the form of letters, emails, photographs, witnesses or experts’ reports. Certain faults may exempt an injured spouse from paying alimony.

4. Property and alimony

The EOT no-fault divorce requires that spouses reach agreement on all aspects of the divorce (custody, alimony, property division and so on). Only those ‘in need’ are entitled to alimony. The court has discretionary powers to settle the amount and take into account the income and potential income of the spouses, but alimony payments are now generally rare. The duration of alimony payments is limited to the duration of the marriage (barring exceptional circumstances), but alimony payments cannot exceed one third of the net income of the alimony payer. Belgium is quite strict on the issue of compliance and enforceability. The service des créances alimentaires (SECAL)/dienst voor alimentatievorderingen (DAVO) deals with cases of non-payment.

5. Money

Beware of hidden costs: when a spouse signs over his/her share of the family home, the gift may come with an unexpected tax bill. The spouse who remains in the family home during the divorce proceedings may find him/herself charged rent. There is also a gulf between legal right and practical enforceability: if one spouse is awarded the use of the family car after a protracted legal fight, actually taking possession of the car with the help of a bailiff may be another expensive matter. Focusing on the key issues and compromising on lesser ones generally saves time, money and energy.

6. Child custody

If a child is a resident of Belgium at the time of the parents’ separation, Belgian courts have jurisdiction to decide with whom he or she lives. If there is no alternative agreement between the parents on child custody, courts usually award joint custody, a 50/50 split between parents, usually on a one-week rotation, though courts can deviate from this if it is not considered to be in the best interests of the child. Children aged over 12 are consulted about where they want to live. According to their means, both parents must contribute to the upbringing and care of minor children. This includes housing costs, education, food and clothing until the child is no longer a minor or finishes school.

7. Prenuptial agreements

Prenups are common practice in Belgium, although with the marriage rate diminishing fewer contracts are being drawn up. In the absence of one, a marriage is termed a mariage à régime legal/huwelijk onder wettelijk stelsel. This means that property held by a spouse before marriage as well as any inheritance remains the property of that individual. Property or funds that come to the couple during the course of their marriage is held jointly. Standard prenuptial agreements in Belgium are communauté de biens/gemeenschap van goederen, which signifies shared possession of all assets, and séparation de biens/scheiding van goederen, which means that each spouse retains financial independence (and cannot be held responsible for their partner’s financial misdeeds). In case of separation or divorce, each party remains in possession of his/her own property.

DIVORCE PROCEEDINGS

• Filing of divorce request signed by both spouses or a lawyer or notary

• First court appearance – both spouses must be present

• Second court appearance for mutual consent cases

• Pronouncement of judgement

• Bailiff serves court judgement to opposing party in contested divorce

• Appeal within one month

• Definitive judgement

 

CONTACTS

SUPPORT FOR SEPARATING PARENTS

www.tweehuizen.be

FRANCOPHONE LAWYERS

www.avocat.be

DUTCH-SPEAKING LAWYERS

www.advocaat.be

BELGIAN NOTARIES

www.notaire.be, www.notaris.be

MEDIATION SERVICE

www.mediation-justice.be

GOVERNMENT WEBSITE

www.minfin.fgov.be

CHILD SUPPORT AGENCY

www.davo.belgium.be

EXPAT SUPPORT

www.exdsn.org

www.chsbelgium.org

Written by The Bulletin Editorial Team