BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
Other legal rules apply to applications lodged before the Brussels II Regulations came into force. Concepts of Domicile, Residence and Nationality The Brussels II ter Regulation uses the concepts of habitual residence and nationality. Under this regula ‑ tion, a place will be considered to be a habitual resi ‑ dence when the person intends to establish the centre of their interests there and their presence in that place presents a sufficient degree of stability. If the Belgian court has no jurisdiction, the judge inves ‑ tigates whether a court from another EU member state has jurisdiction. If this is not the case, the Belgian court applies the Belgian Code of Private International Law and uses the concepts of domicile and residence to determine which courts have jurisdiction. Belgian law recognises several notions of domicile, which dif ‑ Either party to a divorce proceeding may contest the jurisdiction, as may the judge (ex officio) – for exam ‑ ple, for non-respect of the rules of attribution of inter ‑ nal or international jurisdiction or for non-respect of the grounds and conditions for divorce. The question of jurisdiction must be decided by the judge before the merits of the case. Lis Pendens Belgian internal procedural law and Belgian private international law (including the Brussels II Regulations) recognise the concept of lis pendens. Under certain conditions, this may justify an application for a stay of proceedings to the Belgian court that is handling a divorce application, where another foreign court has previously been seized of the same divorce applica ‑ tion. In divorce cases where the Brussels II ter Regulation applies, Article 20 states the following. fer depending on the subject matter. Opportunity to Contest Jurisdiction • “Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are instituted before courts of differ ‑ ent member states, the court second seized shall of its own motion stay its proceedings until such
time as the jurisdiction of the court first seized is established.”“Where the jurisdiction of the court first seized is established, the court second seized shall decline jurisdiction in favour of the court first seized. In that case, the party who instituted pro ‑ ceedings before the court second seized may bring those proceedings before the court first seized.” • “Where a court of a member state on which an acceptance of jurisdiction as referred to in Arti ‑ cle 10 confers exclusive jurisdiction is seized, any court of another member state shall stay the proceedings until such time as the court sei[z] ed on the basis of the agreement or acceptance declares that it has no jurisdiction under the agree ‑ ment or acceptance.”“Where and to the extent that the court has established exclusive jurisdiction in accordance with an acceptance of jurisdiction as referred to in Article 10, any court of another member state shall decline jurisdiction in favour of that court.” In divorce cases where the Belgian Code of Private International Law applies (because no EU or other international instrument applies), Article 14 of this code states the following: “Where a claim is pend ‑ ing before a foreign court and it is foreseeable that the foreign decision will be likely to be recognised or enforced in Belgium, the Belgian judge seized subse ‑ quently of a claim between the same parties involv ‑ ing the same cause of action may stay the proceed ‑ ings until the foreign decision has been given. [The judge] shall take into account the requirements of the good administration of justice. [Jurisdiction shall be declined] where the foreign decision is likely to be rec ‑ ognised by virtue of this law.” 2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings In family matters, a variety of financial claims can be made, including: • liquidation of the matrimonial property regime and division of matrimonial property after a divorce; • maintenance between spouses (during the mar ‑ riage) or between ex-spouses (after the divorce); and
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