BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
The obligations arising from the marriage continue during the divorce proceedings. Spouses still owe each other support. During divorce proceedings on the grounds of irretrievable breakdown, the family court may order interim measures (eg, maintenance payments) pending the final outcome. In a divorce by mutual consent, interim measures are agreed upon by the spouses. Maintenance After Divorce Proceedings In a divorce by mutual consent, the parties must agree on all issues, including maintenance payments (if any). Following a divorce on the grounds of irretrievable breakdown, the economically weaker ex-spouse may be awarded maintenance under certain circumstanc ‑ es and conditions (Article 301 of the old Belgian Civil Code), such as the following. • If the court finds that the economically weaker ex- spouse is entitled – in concreto – to a maintenance allowance, the judge will set the amount to cover at least the state of need of the benefit recipient. The term “need” is a relative concept, based on certain criteria. In some cases, “need” in the strict sense will be taken into account; in other cases, it is considered more in the specific context. The court takes into account the income and capabili ‑ ties of the ex-spouses and the significant decline in the economic situation of the benefit recipient. The court will base its assessment of that regression on, specifically, the duration of the marriage, the age of the parties, their behaviour during the mar ‑ riage with regard to the organisation of their needs, and the dependent children during cohabitation or thereafter. • The maintenance allowance may not exceed one third of the income of the debtor. • Apart from in exceptional circumstances, the dura ‑ tion of maintenance should not exceed the dura ‑ tion of the marriage. • If necessary, the court may decide that the benefit will be degressive and to what extent. 2.5 Prenuptial and Postnuptial Agreements Belgian Pre- or Postnuptial Agreements Spouses are free to deviate from the statutory regime by utilising a prenuptial or postnuptial agreement,
thereby allowing them to customise their matrimonial property arrangements before and during the mar ‑ riage. They are free to establish their own system, as long as the chosen arrangement complies with the law and public policy. If it does, the court will honour the provisions of the marriage contract. This contract must be drawn up by a notary. In the contract, the parties can define their economic and financial relations, establish the rules for proving own ‑ ership of their goods, and determine how they will manage the assets. However, spouses cannot waive the rights to maintenance before the dissolution of the marriage (Article 301, Section 9 of the old Belgian Civil Code). Foreign Pre- or Postnuptial Agreements Recognition of foreign prenuptial and postnuptial agreements in Belgium is governed by the Matrimo ‑ nial Property Regulation No 2016/1103 (Article 36) or the Belgian Code of Private International Law (Article 27) for pre- or postnuptial contracts from countries that are not member states of the EU (whichever one is applicable). 2.6 Cohabitation: Division of Assets Between Unmarried Couples In Belgium, partners can enter into a free union or opt for registered partnership (legal cohabitation). To opt for registered partnership, the partners make a declaration together at the registrar of civil status. A registered partnership can be terminated unilaterally. Some obligations of married couples are applicable to registered partners, such as the obligation to contrib ‑ ute to family expenses in proportion to their income. Unlike married couples, there is no property regime for cohabitants. Generally, each partner retains exclu ‑ sive ownership of their own assets. However, if neither partner can prove ownership of a specific item, it is deemed to be jointly owned (undivided property). In such cases, either partner may request the division of these joint assets at any time, either by mutual agree ‑ ment or through a court decision. Furthermore, if the relationship between the registered partners is seriously disrupted, the Family Court can
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