BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
irretrievable breakdown, a notary will be appointed to carry out the liquidation and division. The way assets are divided upon divorce is codified in the Belgian Civil Code and can be stipulated in the marriage contract. The Belgian court cannot regulate or reallocate assets or resources upon divorce. However, in the case of a separation of property, the legal concept of a judicial fairness adjustment (Article 2.3.81 of the Belgian Civil Code) allows the court – under very strict conditions – to mitigate the conse ‑ quences of the dissolution of the marriage. If spous ‑ es opt for the system of separation of assets, they must indicate in their marriage contract whether they choose to include the possibility of a judicial fairness adjustment, with or without different modalities. If they do, the court may – at the request of the aggrieved spouse – award compensation at the expense of the other spouse under certain circumstances. Identification of Assets In the case of a judicial liquidation of the matrimonial property regime and division of the matrimonial prop ‑ erty, as previously stated, a notary must be appointed. The notary has the responsibility to oversee the vari ‑ ous steps in the procedure of liquidation/division. One such step is the inventory of the estate. Unless all parties waive this requirement and jointly indicate which assets depend on the estate and have to be divided, the appointed notary will draw up the inven ‑ tory of the estate. The ex-spouses are ordered to provide all information and documents useful for the fulfilment of the task of liquidating and dividing the matrimonial property. The parties are required to make full declarations under oath. If a spouse makes a false statement under oath, this spouse can be criminally prosecuted for perjury and risks losing all claims to the assets they have con ‑ cealed with fraudulent intent. Trust Under Belgian Law Belgian law contains a definition of the legal form of a trust, in accordance with Article 122 of the Code of Private International Law, as follows: “The term ‘trust’ means a legal relationship created by an act of the
settlor or by a judicial decision, by which assets are placed under the control of a trustee in order to be administrated in the interest of the beneficiary or for a certain purpose. This legal relationship presents the following characteristics: • the assets of the trust form a separate estate and are not part of the estate of the trustee; • the title to the assets of the trust is drafted in the name of the trustee or the name of another person on behalf of the trustee; [and] • the trustee has the authority and the duty, in respect of which [they have] to justify [themself] to manage, administer or dispose of the goods in accordance with the provisions of the trust and the special duties imposed by law on the trustee.”Despite the existence of this legal defini ‑ tion, Belgian law does not provide a legal frame ‑ work in terms of the setting-up of trusts. A trust that is validly established under foreign law could be recognised from a Belgian private international law point of view. Assets validly contributed or transferred to a trust by (one of) the spouses are, in principle, not to be divid ‑ ed in the event of divorce, as these assets no longer belong to that spouse’s estate. The other spouse, however, could – provided that certain criteria are met and depending on the applicable matrimonial property regime – take action with regard to the transfers made to the trust. The qualification of assets transferred by a trust to (one of the) spouses – and, thus, the ques ‑ tion of whether these assets are to be divided in case of divorce – will be determined on the basis of the applicable matrimonial property regime and marriage contract, if any. 2.4 Spousal Maintenance Interim Measures During Divorce Proceedings The right to spousal maintenance arises from the obligation to support each other as well as contrib ‑ ute to the expenses of the marriage as laid down in the Belgian Civil Code (Articles 213 and 221 of the old Belgian Civil Code). These obligations are mutual. Failure to comply with these obligations may lead to legal action in the form of maintenance proceedings.
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