BELGIUM Law and Practice Contributed by: Larissa De Wulf, Carolyn Vanthienen and Alexandra Goossens, Tiberghien
ceedings may contest the jurisdiction, as may the court (ex officio) – for example, 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 of one of the aforementioned claims in particular, the Belgian court second 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 Regu - lation No 4/2009; Article 18 of the Matrimonial Property Regulation No 2016/1103). Forum Non Conveniens In the absence of specific provisions in Regula - tion No 4/2009 or No 2016/1103 on the theory of forum non conveniens, the court seized may not refuse to exercise its jurisdiction in favour of a court better placed to rule on the matter. 2.2 Service and Process Service Requirements in Financial Proceedings If the application for a maintenance claim or for a division of the matrimonial property is filed at the same time as the divorce proceedings, the ser - vice procedure 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 prop - erty proceedings following a divorce, one of the ex-spouses must file a claim with the family court by writ of summons served by a bailiff on behalf of the plaintiff on the defendant. When dealing with separate proceedings con - cerning 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 mat - rimonial 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 decision, depending on the judi - cial 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 deci - sion on the appeal. The proceedings concerning maintenance will take six months to one year or longer, depend - ing 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.
60
CHAMBERS.COM
Powered by FlippingBook