The act of 27/04/2007 , which came into force on 01/09/2007 , has profoundly changed divorce law: the procedures have been simplified, time periods have been shortened and, above all, fault-based divorce has disappeared.
The decision to start divorce proceedings is always a difficult step to make.
If amicable divorce is preferable, divorce by mutual consent is not always the most appropriate procedure. In effect, the Act of 2007 has created another type of divorce procedure which can result in the couple divorcing amicably and peacefully. This is divorce for de facto separation of more than 6 months, a procedure introduced at the joint request of the spouses.
So although it is always preferable to try to find a negotiated settlement (partial or complete), sometimes, when the circumstances require it, individuals must dare to defend their rights and interests, and undertake litigation.
Maitre Van den Bossche will help you to define your goals precisely and will be at your side to put the most suitable strategy in place, rigorously and pragmatically.
In all cases, Maitre Van den Bossche is ready to help, advise and support you in the context of these various procedures.
The Act of 2007 reforming divorce procedure has kept divorce by mutual consent with shortened time limits in some cases.
If the spouses are seeking divorce by mutual consent, they must agree on everything.
The agreement will be made formal in the form of an agreement , that is to say, a contract which will govern all the consequences of the divorce (articles 1287 and 1288 of the Code Judiciare [Civil Procedure Code]).
Divorce by mutual consent is fastest since the spouses are summoned before the competent judge for an initial appearance in the month that the application instituting proceedings is filed (article 1289 of the Code Judiciare).
In principle, the spouses must appear twice: initially when first summoned to the introductory hearing, and then a second time at least 3 months after the first appearance (article 1294 of the Code Judiciare).
Under certain conditions, the 2007 law allows the procedure for divorce to be speeded up. So, if on the day of the application, the spouses have already been separated de facto for more than 6 months, they will appear only once before the judge: the first appearance will suffice.
The spouses must agree on each of their residences during the procedure itself, and in particular on the fate of the matrimonial home, if appropriate.
Under a procedure for divorce by mutual consent, the parties enjoy great contractual freedom as to the sharing of their movable and immovable property, and this is true, whatever system of marital property has been chosen.
If the spouses own one or more buildings, they must agree on their future: sell the property and share the proceeds of the sale in equal shares or not (all possibilities are conceivable in the context of a divorce by mutual consent), possession of the property by one spouse and payment by the latter of a balancing payment (compensation) to the other, etc.
They must also deal with the potential exercising of their inheritance rights, mainly the question of whether they will remain heirs of each other in the event of the death of one of them during the divorce proceedings. Most of the time, spouses relinquish these rights.
Maintenance
They must indicate if one of the two will pay maintenance to the other for joint children.
Custody and parental authority
The spouses must specify the arrangements for custody of the children (“custody rights”/”visiting rights”).
Who will have principal custody? Who will have secondary custody?
The parties must consider custody by constantly keeping in mind that this must be fixed in the interest of the children.
The spouses may also provide for an alternative custody, which is equal or otherwise, if this type of custody is in the interest of the children.
The custody arrangements must be specified both during the school year and during holidays.
The spouses must indicate if one of them will pay interim maintenance during the case and/or maintenance after divorce (duration and amount).
In the case of contested divorce, the spouses’ dispute is, in principle, submitted before two judges:
Divorce for irreconcilable differences currently replaces fault-based divorce and divorce for separation of more than two years which have been repealed.
There are two causes for irreconcilable differences:
The behaviour of one or the other or both of the spouses resulting in the judge’s conviction that continuing a life together has become impossible and that the marriage has broken down irretrievably
Article 229 § 1 of the Code civil [Civil Code] provides that “The marriage has broken down irretrievably when it is reasonably impossible for the spouses to continue or resume a life together”.
It may be a case of wrongful behaviour.
Therefore, the fact for a spouse to commit adultery or to have a child born of an adulterous relationship during the marriage, as well as alcoholism of a spouse or marital violence committed by a spouse with respect to the other, may constitute causes of irreconcilable differences.
However, to grant a divorce for irreconcilable differences, the judge must be convinced by one or other of the spouses, or by both, that continuing a life together has become impossible. The spouse who claims irretrievable breakdown must naturally provide evidence of this, which is not always easy.
If only one of the spouses wants divorce, and if that spouse is not able to prove immediately that the marriage has broken down irretrievably as explained above, and if the other spouse refuses: divorce for irretrievable breakdown must be granted by the judge when the applicant spouse provides evidence that they have been separated de facto for more than a year (article 229 §3 of the Code Civil [Civil Code]).
If the applicant spouse, on the day of the hearing for instigating divorce proceedings, cannot provide proof of a de facto separation of more than a year, the judge then set a new appearance at a second hearing, which will take place a year later or immediately after the expiry of a period of one year of separation (articles 229 §3 Code Civil and 1255, §2 Code Judiciaire).
If both spouses agree to divorce, it is enough for them to provide evidence that they have been separated for more than six months: the judge is then required to grant the divorce immediately.
If they have not been separated for more than six months on the day of the hearing for instigating divorce proceedings, the judge then sets a new appearance at a second hearing, which will take place three months after the first (article 229§2 Code Civil and 1255, §1 Code Judiciaire).
The presiding judge at the Court of the first instance sitting in chambers is competent to hear and decide on provisional measures to be taken during divorce proceedings (article 1280 Code Judiciaire).
The spouses
Unlike the measures relating to children, the measures between spouses automatically cease to be applicable once the divorce decree becomes final.
Children
It is important to emphasise here that decisions taken by the judge in chambers with regard to the children remain applicable even after the divorce decree becomes final (article 302 Code Civil). These measures may remain applicable for years.
Holograph will
Authenticated will
International will
Contractual appointment of an heir/ess
Recovery of maintenance claims
Civil penalities
Criminal penalities
Family criminal law
Family abandonment
Child abandonment
FAILURE TO COMPLY WITH A CHILD ACCESS REQUEST
INTERNATIONAL CHILD ABDUCTION
BOGUS MARRIAGE
HARASSMENT
DOMESTIC VIOLENCE
ADOPTION
INTERNAL/WITHIN BELGIUM ADOPTION
INTERNATIONAL ADOPTION
PARENTAGE
RECOGNITION OF PATERNITY
CONTESTING PATERNITY
RECOGNITION OF MATERNITY
CONTESTING MATERNITY
CHANGE IN CIVIL STATUS
CHANGE OF LAST NAME AND/OR FIRST NAME
TRANSEXUALISM
