BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
for non-respect of the rules of attribution of internal or international jurisdiction or for non-respect of the grounds and conditions. The question of jurisdiction must be decided upon by the court before deciding on the merits of the case. Lis Pendens If a foreign court is already seized by one of the afore ‑ mentioned claims in particular, the Belgian court sec ‑ ond-seized will have to apply – where appropriate – the lis pendens rules applicable in view of the subject matter of the claim. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different EU member states, any court apart from the court first seized may of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established (Article 12 of the Maintenance Regulation No 4/2009; Article 18 of the Matrimonial Property Regulation No 2016/1103). Forum Non Conveniens In the absence of specific provisions in Regulation No 4/2009 or No 2016/1103 on the theory of forum non conveniens, the court seized may not refuse to exer ‑ cise its jurisdiction in favour of a court better placed to rule on the matter. 2.2 Service and Process in Financial Proceedings Service Requirements in Financial Proceedings If the application for a maintenance claim or for a divi ‑ sion of the matrimonial property is filed at the same time as the divorce proceedings, the service proce ‑ dure for the divorce proceedings will be followed (see “Service of Divorce Petition” in 1.1 Grounds, Timeline, Service and Process ). When dealing with separate matrimonial property pro ‑ ceedings following a divorce, one of the ex-spouses must file a claim with the family court by writ of sum ‑ mons served by a bailiff on behalf of the plaintiff on the defendant. When dealing with separate proceedings concerning maintenance, a claim may be filed:
• by writ of summons served by a bailiff on behalf of the plaintiff on the defendant; • by petition served on the defendant by the clerk of the family court on request of the plaintiff; or • by means of a joint petition. Timeline At the start of the proceedings concerning the judicial liquidation/division, the judge will appoint a notary to carry out the liquidation of the matrimonial property regime. The first phase of the procedure, led by the appointed notary, takes at least 18 months (unless the parties come to an agreement within a shorter period). If the parties do not agree with the decision of the notary, they can appeal to the court – in which case, it could take at least another year to make a final deci ‑ sion, depending on the judicial backlog. If the parties subsequently disagree with the decision of the tribunal of first instance, they can make an appeal and – once again – it may take up to a year or longer to obtain a decision on the appeal. The proceedings concerning maintenance will take six months to one year or longer, depending on the court and the judicial backlog. If an appeal is lodged against the decision, a decision on the appeal will also take at least another year or longer. 2.3 Division of Assets Property Regimes and Possibility of Relocation by a Judge The Belgian Civil Code sets out the various matrimo ‑ nial property regimes. The statutory regime, in the absence of a prenuptial agreement, is a separation of assets with a community of acquisitions. If the spouses want to modify the statutory regime or wish to marry under a separation of property or a universal community of property, a marriage contract must be concluded. The liquidation of the matrimonial property regime and the division of matrimonial property takes place once the divorce has been granted. In the case of a divorce by mutual consent, the par ‑ ties must reach an agreement on the division of their matrimonial assets and then the court will grant the divorce. In the case of a divorce on the grounds of
36 CHAMBERS.COM
Powered by FlippingBook