BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
1. Divorce 1.1 Grounds, Timeline, Service and Process In Belgium, a couple may live in a free union or opt for a legal status. In the latter case, they may opt for registered partnership (legal cohabitation) or marriage. Only civil marriage is legally recognised in Belgium and confers married status with all the rights and obli ‑ gations that entails. Religious marriage is not legally recognised in the Belgian legal system. A marriage may be between heterosexual or homosexual cou ‑ ples. When a married couple’s relationship ends, either spouse may apply for a divorce, under the conditions set out here. However, they may also decide not to apply for a divorce (or not immediately), but instead to opt for a de facto separation or a legal separation. De Facto Separation De facto separation does not require legal proceed ‑ ings. However, as long as the divorce (or judicial sepa ‑ ration) is not final, the spouses remain married and continue to be bound by their obligations arising from the marriage (eg, duty to cohabit and duty to provide maintenance). Consequently, if one of the spouses fails to fulfil their obligations (eg, regarding mainte ‑ nance), the other may apply to the court for provisional measures. Legal Separation One or both spouses may want to put an end to some of their obligations arising from the marriage (eg, cohabitation or fidelity). In this case, they can ask the family court to order a legal separation. In this way, the spouses remain married but their rights and duties as spouses are reduced. Divorce Divorce is one of the ways of terminating a marriage. It can be requested from the family court, either by one spouse or by both spouses together (this is known as “divorce on grounds of irretrievable breakdown”). Divorce can also be agreed upon between the parties and pronounced by the court at their request (this is known as “divorce by mutual consent”).
There is no longer a fault-based divorce in Belgium. Nevertheless, the question of fault may reappear in maintenance debates between ex-spouses in certain cases, or to establish irretrievable breakdown. Divorce on grounds of irretrievable breakdown The family court may grant a divorce if it establishes that the spouses’ relationship has irretrievably broken down. Disunion is irretrievable when it makes it rea ‑ sonably impossible for the spouses to continue living together or to resume living together. Irretrievable breakdown may be proven by any legal means. The law considers that irretrievable break ‑ down is established, either: • when the application for divorce is made jointly by the two spouses after more than six months of de facto separation or, when this application is repeated, the second time being three months after the initial hearing; or • when the application is made by one spouse after more than one year of de facto separation or, when it is repeated, the second time being one year after the hearing at which the application was made. Irretrievable breakdown may be proven by other facts, such as duly established acts of domestic violence, adultery, or any other fact that makes it impossible to resume or continue living together. In some cases, the court may order the parties to appear in person at the hearing. In addition, the appli ‑ cation initiating proceedings may also contain: • requests for urgent and provisional measures concerning the parties and any minor children (or children still in education) for the duration of the divorce proceedings; • a request for the appointment of a notary to carry out the liquidation of the matrimonial property regime once the divorce has been granted by the judge; and • a claim for post-divorce maintenance in favour of one of the parties. These other claims may also be lodged separately, following the application for divorce.
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