BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
the preferred arrangement (ie, the evenly divided resi ‑ dence of the child) can be applied if at least one parent requests it. The court will take into account the best interests of the child and the quality of contact with each parent. The court can also take into account the interests of the parents, but only if this does not com ‑ promise the interests of the child. In assessing the evenly divided residence of the child, the court can – among other things – take the follow ‑ ing criteria into consideration: • the need for a stable environment and stability in terms of relocations; and • the financial feasibility, the way of life of the parents and their availability, and the educational capabili ‑ ties of the parents. Possible reasons to deviate from the evenly divided residence of the child are: The general rule when it comes to child maintenance is that all parents must provide housing, maintenance, health, supervision, education, training and develop ‑ ment for their children in proportion to their means. This obligation lasts throughout the child’s minority. However, if the child has not completed their educa ‑ tion by the time they reach the age of majority (18 years old), the obligation continues until their educa ‑ tion is completed. The means of the parents include all professional, per ‑ sonal and fixed property income of the parents, as well as all benefits and other resources ensuring their standard of living and that of the children. And each parent must contribute to the costs of the children in proportion to the parent’s respective share of aggre ‑ gate resources. • considerable geographical distance; • unavailability of one of the parents; • manifest indifference; • the young age of the child; and • keeping siblings together. Child Maintenance A child has the right to share their parents’ standard of living. If one of the parents does not fulfil their obliga ‑
tion to provide for their child or children, the other par ‑ ent can claim child maintenance payments to cover these costs, which include ordinary costs as well as extraordinary costs. A minor (ie, a child younger than 18) cannot apply for maintenance from their parents. Parameters defined by law The Belgian legislature has imposed eight well-defined parameters to be taken into account by the court when deciding on maintenance. It also requires the court to include these eight parameters in its judgment and to clarify how it has taken them into account. These parameters include: • the nature and amount of the resources of each of the parents; • the ordinary costs that make up the child’s budget as well as the way they are budgeted; • the nature of the extraordinary costs to be taken into account, the portion of these costs to be borne by each of the parents, as well as the modalities for the use of these costs; • the child’s residence arrangement and the contri ‑ bution in kind of each of the parents to the child’s maintenance as a result of this residence arrange ‑ ment; • the income, if any, received by each of the parents from the enjoyment of the child’s property; • the share of each of the parents in bearing the costs arising from Article 203, Section 1 of the Civil Code and any maintenance contribution set thereon, as well as the modalities for its adjustment pursuant to Article 203 quater of the Civil Code; and • the special circumstances of the case taken into account. Courts are increasingly using calculation tools to help them determine the cost of children and the amount of maintenance due. However, they are not obliged to use these tools, nor are they bound by their results. Payment of child maintenance can always be adapted according to the child’s needs. One of the parents can file an application to change child maintenance payments determined in a previous judgment when there are new circumstances. It is important to note that the changes must be independent from the will
43 CHAMBERS.COM
Powered by FlippingBook