BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
Liquidation of property regime of spouses after a divorce The Belgian courts will apply the rules of the Matri ‑ monial Property Regulation No 2016/1103 for legal proceedings instituted on or after 29 January 2019. If a Belgian court is seized to rule on an application for divorce pursuant to the Brussels II bis Regulation (or, as of 1 August 2022, the Brussels II ter Regula ‑ tion), the Belgian court will have jurisdiction to rule on matters of the matrimonial property regime arising in connection with that application. This jurisdiction should not be allowed without the spouses’ agree ‑ ment (Article 5) if it is based on the following grounds: • the Belgian court is seized because Belgium is the habitual residence of the applicant (for at least one year before application was made or for at least six months before the application and the applicant is a Belgian national); • the Belgian court is seized in cases of conversion of legal separation into divorce; or • the Belgian court is seized in cases of residual jurisdiction. When dealing with separate matrimonial property pro ‑ ceedings following a divorce, the Belgian court has jurisdiction in the following cases (Articles 6 and 7): • where there is a choice of court agreement; • where shared habitual residence is in Belgium at the time the court is seized; • where the most recent habitual residence is in Belgium if one spouse still resides there at the time the court is seized; • where the respondent is resident in Belgium at the time the court is seized; or • where both spouses have Belgian nationality. Other legal rules are applicable to applications lodged before 29 January 2019, when Regulation No 4/2009 came into force (ratione temporis). Contesting Jurisdiction The jurisdiction of the Belgian court may be challenged if the above-mentioned rules are not respected. Either party to the financial proceedings may contest the jurisdiction, as may the court (ex officio) – for example,
• child support. In Belgium, the grounds for jurisdiction to commence financial proceeding in family matters vary based on the specific financial claim. For each claim, it is nec ‑ essary to check that the court seized has jurisdiction, both internationally and under domestic procedural law. The claims concerning child support will be dis ‑ In cases involving foreign elements, the Belgian court will apply the rules of its private international law. Maintenance Regarding jurisdiction, the judge will apply the rules dictated in the Maintenance Regulation No 4/2009. The Belgian courts have jurisdiction if the defend ‑ ant or the creditor is habitually resident in Belgium. In addition, the Belgian courts with jurisdiction under the Brussels II ter Regulation (Article 3 (c) (see 1.2 Choice of Jurisdiction in Divorce Proceedings ) in matrimonial matters generally have jurisdiction to decide on ancillary spousal or post-marital mainte ‑ nance. Parties may designate the Belgian court as the competent court in a written agreement if one of them is habitually resident in Belgium or if they are of Belgian nationality. Spouses or former spouses may also still choose the Belgian court if they had their last common habitual residence in Belgium for at least one year or if a Belgian court has jurisdiction over their matrimonial disputes. Belgian courts can hear (separate) financial claims after a foreign divorce if the Belgian court has juris ‑ diction and the divorce is recognised in Belgium. However, international jurisdiction is excluded for a new action or for an action to modify a maintenance obligation, as long as the creditor still resides in the other EU member state where the original decision was made. cussed in 3. Child Law . Grounds for Jurisdiction Other legal rules are applicable to applications lodged before the Maintenance Regulation No 4/2009 came into force (ratione temporis).
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