Sources of family law
The law relating to family relationships, marriage breakdown and inheritance is laid down in the Civil Code (CC). Provisions relating to the administration of justice are laid down in the Judicial Code (JC). Case law is relevant to the interpretation and application of the Codes.
In Belgium, there is no special family court. Cases related to family are heard in ordinary courts. They are not heard in camera, but there are prohibitions on the publicising what happens during proceedings. Divorce cases are heard by courts of first instance.
In addition, the local magistrate has jurisdiction to make orders for maintenance or hear conciliation proceedings in which the magistrate can make orders, for maintenance, residence, custody or access during the ‘waiting period’ before a divorce. A case in which there is no prospect of possible reconciliation and divorce proceedings, the Magistrate has no jurisdiction.
Disputes involving minors are dealt in Youth courts, and they have no jurisdiction in divorce proceedings. Appeals from these courts are to the Court of Appeal and then to the Supreme Court.
Family disputes are usually referred to advocates, the only lawyers with rights of audience in the courts, who receive instructions directly from the client, negotiate settlements, draft pleadings and appear on behalf of the client in court. Notaries are also involved in family matters. Marriage contracts, wills and also separation deeds in cases of divorce are drawn by notaries. There is no association of family lawyers.
Belgium has a two-fold system of legal aid:
(i) Each local bar must administer a primary and secondary legal aid office. Primary legal aid assistance consists of supplying a first legal opinion or practical information during a 10-15 minute consultation. This service is free for those on very low incomes, while others have to pay a financial contribution of BEF 500 (approximately EUR 13). If further assistance is required, the person will have access to secondary legal aid. A lawyer will be appointed by the office. This aid will be free if the applicant has a very low income, while reduced fee will apply to those with higher incomes. Legal aid is available to non-Belgium nationals. There is no national legal aid office: applications by residents and non-residents must be made to individual local bars.
(ii) In addition, there is a system of legal assistance to provide for payment of legal costs of proceedings and enforcement. This is normally only available to Belgian nationals, although it can be granted to foreigners covered by international conventions, citizens of a member state of the Council of Europe, or person regularly residing in Belgium. It is always available to foreigners in cases concerning their immigration, residence or expulsion.
Belgium has ratified the European Agreement on the Transmission of Applications for Legal Aid, 1977.
‘Domicile’ is defined as the place where a person has his principal establishment. This is normally evidenced by registration in the commune.
THE CREATION OF A VALID MARRIAGE
The parties must have the capacity to marry and must comply with legal formalities.
Capacity to marry
The parties must:
(i) be at least 18 years old. Special dispensation to marry below this age can be given by the Youth Court.
(ii) both give full consent.
(iii) not be already married.
(iv) have the parental consent, if under the age of 18. Where consent is not forthcoming, the dispute can be decided by the Youth Court.
(v) not be within the prohibited degrees of relationship. Marriage is prohibited between ascendants and descendants in the direct line or their spouses. It is also prohibited between brothers and sisters or their spouses, except that a marriage between a man and his sister-in-law or a woman and her brother-in-law is allowed after the death of the brother or sister whose marriage gave rise to the relationship, or by special consent of the King. Marriage between aunts and nephews and uncles and nieces is also prohibited, but may be permitted by the consent of the king.
A marriage celebration must be done publicly before the officer of state of the local commune where one party has his or her residence or domicile at the date of the declaration of marriage.
The future spouses have to make the declaration of marriage not less than 14 days and not more than 6 months before the marriage. Declaration is examined and ensured by the officer of state that there are no impediments to the marriage. He or she can refuse to celebrate the marriage if he or she considers that a condition is not filled or that the marriage will not be genuine. The future spouses have one month to oppose this decision in the court of first instance. The public prosecutor of the court of first instance in the area of the proposed marriage can authorise the marriage to be celebrated at another time.
By the production of the marriage certificate issued by the officer of state, a marriage can be proved.
A religious ceremony can follow the civil ceremony, but this has no legal effect and must be preceded by a civil ceremony.
Annulment of marriage
A marriage that does not fulfil certain conditions can be annulled, notably when the intention of the spouses (or one of them) was not to have a real community of life but to obtain indirect advantages from the marriage (e.g., the right to stay in the territory). The nullity of the marriage can be pronounced by the court of the first instance.
An annulment obtained in the ecclesiastical court according to the requirements and procedures for annulment under canon law will have no effect on the civil status of the parties.
Recognition of the foreign marriages
The following marriages are considered valid marriages in Belgium:
- a marriage between Belgian nationals or foreigners celebrated in a foreign country according to the formalities of that country;
- a marriage outside Belgium between Belgian nationals celebrated by diplomatic or consular officials on whom the status of officer of state has been conferred;
- a marriage outside Belgium between Belgian nationals and foreigners celebrated by diplomatic or consular officials who have special authority.
A Belgian national who returns to Belgium after contracting a foreign marriage can request that the marriage be inscribed in the civil register of the commune where he or she resides.
THE LEGAL CONSEQUENCES OF MARRIAGE
The rights and obligations of spouses are laid down in the Civil Code.
Marriage generally has no effect on nationality, so that a Belgian does not lose his or her nationality on marrying a foreigner and a foreigner who marries a Belgian does not automatically acquire Belgian nationality. Belgian nationality can be granted to a foreign spouse by means of a simple declaration, which will be granted if it is judged that his or her desire for ‘integration’ is adequate and provided the couple have lived together in Belgium for at least six months before the request. On the question of nationality of spouses Belgium has entered into bilateral conventions with many other countries. Each case is decided on its merits on the absence of a convention.
There are special rules concerning the acquisition of Belgium citizenship by children.
Property rights on marriage
The property rights of spouses depend on the matrimonial system to which they are subject, which in turn depends on whether or not they have entered into a marriage contract and, if so, which type of contract. A contract must be entered into before marriage, but may be challenged subsequently by one party with the consent of the other, by a creditor, or by court order (e.g., if one party fears the other is dissipating assets).
There are three main systems of property ownership:
(i) The legal system. This applies where there is no marriage contract. All assets acquired after marriage are commonly owned and have to be shared equally on divorce or death. The spouses retain individual ownership of assets owned before marriage, however, and assets acquired by way of inheritance during marriage.
(ii) The system of common ownership. The parties can provide by contract that everything they own, whether acquired before or during marriage, is to be equally shared.
(iii) The system of separation of goods. The parties can by contract agree not only to retain possession of their own pre-marriage assets but also their own income and savings during marriage. Individual clauses in the contract may regulate the ownership of assets purchased in common, otherwise these form part of the common property and are held in equal shares.
There is a mutual duty of spouses for their children and assistance to each other. Spouses can apply to a magistrate for an order for maintenance for themselves and/or their children. Parents and children over 18 have a mutual obligation in relation to financial support, and children may also be obliged to support their parents-in-law.
Children and parental authority
It is the equal right of the each parent to have exercise authority over minor children. Under Belgian succession laws, children have an automatic and inalienable right to inherit part of a parent’s estate.
FINANCIAL PROVISION DURING MARRIAGE
Financial provision from the courts
A spouse can apply to the local magistrates’ court for a maintenance order for the applicant and/or a child of the marriage if the other spouse has failed to make reasonable provision for the applicant and/or any a child of the family. If either spouse fails to fulfil his or her obligations towards the other, or if there are serious problems between the parties, the magistrate has wide powers of intervention. The magistrate hears the parties (possibly with their lawyers) at the written request of either spouse and then makes the appropriate order: e.g., maintenance for a spouse and/or child; exclusion of one spouse from the matrimonial home; care and control of the children; and arrangements for visiting the children. Orders are provisional and made for a limited period (usually three to six months) following which the parties may resume cohabitation (if they have been living apart), or begin divorce proceedings, or continue to live apart without an order.
Belgium has a complicated social security system which varies according to whether as person is employed or self-employed.
During marriage the retirement pension of an employed or self-employed spouse is adjusted to take into account a dependent spouse. After divorce the ex-wife of an employee can claim a state pension in her own right based on her ex-husband’s employment and is treated as if she herself has been an employee during the period of her marriage. The ex-wife of a self-employed husband also has a right to a retirement pension based on a means test, which is not payable if her husband has ceased his professional activity. An ex-wife loses her rights if she is entitled to a pension under another system (unless she renounces these rights) or if she remarries or was convicted of an attempt to murder her husband or has been deprived of her parental rights. A dependent divorced husband has the same rights based on the employment of his ex-wife.
The right to a survivor’s pension is lost on divorce. However, the survivor will continue to receive the retirement pension which is granted in his or her own right.
Spouses must complete a joint declaration relating to income for the year following that in which they marry. The earnings of each spouse are separately assessed for income tax purpose and any joint income (e.g., any revenue from jointly-owned property) is aggregated with the income of the higher earner. If only one spouse is earning (or one is earning less than 30% of their joint income) the tax authorities impute a fictional 30% of the income to the other spouse. Tax rates are progressive.
PROPERTY DURING MARRIAGE
Ownership of property during marriage is dependent on the system of matrimonial property under which the parties married.
Where there is no contract, or when the contract provides for the legal system of property ownership, all assets, income and savings acquired during the marriage by each spouse belong to the ‘common property’, except assets owned prior the marriage or received by succession during the marriage.
Under the common property system, spouses can contract that all their assets shall be part of the ‘common property’, in which case all property is equally owned, except that of a strictly personal nature (e.g., clothes) and any rights attaching solely to that person. They can choose to limit the extent of the common property to e.g., furniture or real property. They must make an inventory of all property wholly or partly included in the common property at the time of the marriage.
Under the system of separation of assets each spouse not only retains ownership of assets owned prior to marriage but retains in his or her own right all income and savings during marriage. When it is not possible to establish who owns particular items they are considered to be held in equal shares.
Disputes about ownership
As matrimonial property ownership is governed by the applicable property regime, disputes are only likely to arise in respect of what property was owned by each party before marriage, or when one spouse wishes to change the applicable property system. A spouse can ask for a legal separation of assets if he or she can show that the other spouse deliberately or through mismanagement is wasting or has wasted common assets.
Occupation of the matrimonial home
RIGHTS OF OCCUPATION
An important exception to the rule that property rights are governed by the applicable matrimonial property system is provided by article 215 of the Civil Code, whereby neither spouse can make any prejudicial disposition of his or her interest in the main matrimonial home or house contents (with the exception of items purchased as investment) without the other spouse’s consent.
MORTGAGE POSSESSION ACTIONS AND OCCUPATION
A spouse cannot mortgage the matrimonial home (even if he or she has sole legal ownership) without the consent of the other spouse. A mortgage must be registered by a notary who must verify the identity of the mortgagor and his or her civil status. A spouse is bound by the terms of the mortgage and has no further protection in the event of repossession.
Author: Navin Kumar Jaggi