BELGIUM Law and Practice Contributed by: Larissa De Wulf, Carolyn Vanthienen and Alexandra Goossens, Tiberghien
• 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 [them - self] 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 definition, Bel - gian law does not provide a legal framework 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 divided 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 question of whether these assets are to be divided in case of divorce – will be determined on the basis of the applicable matrimonial prop - erty 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 contribute 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. The obligations arising from the marriage con - tinue 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 con - sent, 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 pay - ments (if any). Following a divorce on the grounds of irretriev - able breakdown, the economically weaker ex- spouse may be awarded maintenance under certain circumstances 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 capabilities 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 marriage with regard to the organisation of their needs,
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