Family Law 2024 Comparisons

In Belgium, a couple may live in a free union or opt for a legal status. In the latter case, they may opt for registered partnership (legal cohabitation) or marriage.

Only civil marriage is legally recognised in Belgium and confers married status with all the rights and obligations that entails. Religious marriage is not legally recognized in the Belgian legal system. A marriage may be between heterosexual or homosexual couples.

When a married couple’s relationship ends, either spouse may apply for a divorce, under the conditions set out here. However, they may also decide not to apply for a divorce (or not immediately) but instead to opt for a de facto separation or a legal separation.

De Facto Separation

De facto separation does not require legal proceedings. However, as long as the divorce (or judicial separation) is not final, the spouses remain married and continue to be bound by their obligations arising from the marriage (eg, duty to cohabit, duty to provide maintenance). Consequently, if one of the spouses fails to fulfil his or her obligations, for example regarding maintenance, the other may apply to the Court for provisional measures.

Legal Separation

One or both spouses may want to put an end to some of their obligations arising from the marriage (eg, cohabitation or fidelity). In this case, he or she can ask the Family Court to order a legal separation. In this way, the spouses remain married but their rights and duties as spouses are reduced.

Divorce

Divorce is one of the ways of terminating a marriage. It can be requested from the Family Court, either by one spouse or by both spouses together (this is known as “divorce on grounds of irretrievable breakdown”). Divorce can also be agreed upon between the parties and pronounced by the court at their request (this is known as “divorce by mutual consent”).

There is no longer a fault-based divorce in Belgium. Nevertheless, the question of fault may reappear in maintenance debates between ex-spouses in certain cases, or to establish irretrievable breakdown.

Divorce on grounds of irretrievable breakdown

The Family Court may grant a divorce if it establishes that the spouses’ relationship has irretrievably broken down. Disunion is irretrievable when it makes it reasonably impossible for the spouses to continue living together or to resume living together.

Irretrievable breakdown may be proven by any legal means. The law considers that this irretrievable breakdown is established, either:

• when the application for divorce is made jointly by the two spouses after more than six months of de facto separation or, when this application is repeated, the second time is three months after the initial hearing.
• when the application is made by one spouse after more than one year of de facto separation or, when it is repeated, the second time is one year after the hearing at which the application was made.

Irretrievable breakdown may be proven by other facts, such as duly established acts of domestic violence, adultery or any other fact that makes it impossible to resume or continue living together.

In some cases, the court may order the parties to appear in person at the hearing. In addition, the application initiating proceedings may also contain:

• requests for urgent and provisional measures concerning the parties and any minor children (or children still in education) for the duration of the divorce proceedings.
• a request for the appointment of a notary to carry out the liquidation of the matrimonial property regime once the divorce has been granted by the judge.
• a claim for post-divorce maintenance in favour of one of the parties.

These other claims may also be lodged separately, following the application for divorce.

The decision granting the divorce only has effect:

• for third parties, from the date on which the divorce decision is recorded in the Database of Civil Status Deeds;
• for the parties, with regard to the personal effects of the divorce, from the date on which the decision granting the divorce acquires the force of res judicata (ie, it is no longer subject to appeal or opposition); and
• as regards the parties’ assets, from the date of filing of the divorce application or serving the divorce summons.

An appeal may be lodged before the appellate court.

Divorce by mutual consent

The parties may decide together to divorce and reach an agreement on all aspects related to their joint minor children, as well as on all aspects concerning their personal rights and all aspects of matrimonial law, including the division of their matrimonial assets. If the conditions are met, the court will grant the divorce and approve the agreement relating to the children.

The decision granting the divorce only has effect:

• for third parties, from the date on which the divorce decision is recorded in the Database of Civil Status Deeds.
• for the parties, with regard to the personal effects of the divorce, from the date on which the decision granting the divorce acquires the force of res judicata.
• as regards the parties’ assets, from the date on which the divorce petition is filed.

An appeal against this decision is possible under certain conditions.

Timeline

Divorce proceedings based on irretrievable breakdown can take between six months and one year. Divorce by mutual consent takes between six months and one year (based on a divorce agreement). If an appeal is lodged against the decision granting the divorce, it can take up to one year to obtain a decision on appeal.

These delays may be longer in certain courts of first instance or certain courts of appeal (in the event of an appeal).

Service of Divorce Petition

An application for divorce on the grounds of irretrievable breakdown may be filed:

• by writ of summons served on the defendant by a bailiff on behalf of the plaintiff; or
• by petition served on the defendant by the clerk of the Family Court upon request of the plaintiff.

The court is seized from the date of service by bailiff in the first case and from the date the application is lodged at the court office in the second case.

An application for divorce by mutual consent will be filed with the clerk of the Family Court via a joint petition of the spouses. The court is seized from the date the application is lodged at the court office.

Annulment of Marriage

On certain grounds, the marriage may be annulled by the Family Court. An annulment may be requested, particularly in the event of:

• a defect in consent; or
• a breach of legal conditions related to the conditions of marriage (eg, impediments to marriage between certain persons).

Jurisdictional Competence for Divorce

In cases involving foreign elements (such as the foreign nationality of the parties), the Belgian court will apply the rules of its private international law.

In terms of jurisdiction, the court will apply:

• the Council Regulation (EC) No 2201/2003 of 27 November 2003 (“Brussels IIbis Regulation”) for applications lodged before 1 August 2022; or

• the Council Regulation (EC) 2019/1111 of 25 June 2019 (the “Brussels IIter Regulation”) (Article 3 – habitual residence and nationality) for divorce applications lodged on or after 1 August 2022.

Other legal rules were applicable to applications lodged before the Brussels II Regulations came into force.

Concepts of Domicile, Residence and Nationality

The Brussels IIter Regulation uses the concepts of habitual residence and nationality. Under this regulation, a place will be considered to be a habitual residence when the person intends to establish the centre of their interests there and their presence in that place presents a sufficient degree of stability.

If the Belgian court has no jurisdiction, the judge investigates whether a court from another EU member state has jurisdiction. If this is not the case, the Belgian court applies the Belgian Code of Private International Law and uses the concepts of domicile and residence to determine which courts have jurisdiction. Belgian law recognises several notions of domicile, which differ depending on the subject matter.

Opportunity to Contest Jurisdiction

Either party to a divorce proceeding may contest the jurisdiction, as may the judge (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 for divorce.

The question of jurisdiction must be decided by the judge before the merits of the case.

Lis Pendens

Belgian internal procedural law, as well as Belgian private international law (including the Brussels II Regulations), recognises the concept of lis pendens. Under certain conditions, this may justify an application for a stay of proceedings to the Belgian court that is handling a divorce application, where another foreign court has previously been seized of the same divorce application.

In divorce cases where the Brussels IIter Regulation applies, Article 20 states the following.

• “Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are instituted before courts of different member states, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.”
• “Where the jurisdiction of the court first seized is established, the court second seized shall decline jurisdiction in favour of the court first seized. In that case, the party who instituted proceedings before the court second seized may bring those proceedings before the court first seized.”
• “Where a court of a member state on which an acceptance of jurisdiction as referred to in Article 10 confers exclusive jurisdiction is seized, any court of another member state shall stay the proceedings until such time as the court seised on the basis of the agreement or acceptance declares that it has no jurisdiction under the agreement or acceptance.”
• “Where and to the extent that the court has established exclusive jurisdiction in accordance with an acceptance of jurisdiction as referred to in Article 10, any court of another member state shall decline jurisdiction in favour of that court.”

In divorce cases where the Belgian Code of Private International Law applies (because no EU or other international instrument applies), Article 14 of this code states the following.

“Where a claim is pending before a foreign court and it is foreseeable that the foreign decision will be likely to be recognised or enforced in Belgium, the Belgian judge seized subsequently of a claim between the same parties involving the same cause of action may stay the proceedings until the foreign decision has been given. [The judge] shall take into account the requirements of the good administration of justice. [Jurisdiction shall be declined] where the foreign decision is likely to be recognised by virtue of this law.”

In family matters, a variety of financial claims can be made, including:

• liquidation of the matrimonial property regime and division of matrimonial property after a divorce.
• maintenance between spouses (during the marriage) or between ex-spouses (after the divorce); and
• child support.

In Belgium, the grounds for jurisdiction to commence financial proceeding in family matters vary based on the specific financial claim. For each claim, it is necessary to check that the court seized has jurisdiction, both internationally and under domestic procedural law. The claims concerning child support will be discussed in 3. Child Law.

Grounds for Jurisdiction

In cases involving foreign elements, the Belgian court will apply the rules of its private international law.

Maintenance

As a result, and in terms of jurisdiction, the judge will apply the rules dictated in the Maintenance Regulation No 4/2009. The Belgian courts have jurisdiction if the defendant or the creditor is habitually resident in Belgium. In addition, the Belgian courts with jurisdiction under the Brussels IIter Regulation (Article 3(c) (see 1.2 Choice of Jurisdiction) in matrimonial matters generally have jurisdiction to decide on ancillary spousal or post-marital maintenance. Parties may designate the Belgian court as the competent court in a written agreement if one of them is habitually resident in Belgium or if they are of Belgian nationality. (Former) spouses may also still choose the Belgian court if they had their last common habitual residence in Belgium for at least one year or if a Belgian court has jurisdiction over their matrimonial disputes.

Belgian courts can hear (separate) financial claims after a foreign divorce if the Belgian court has jurisdiction and the divorce is recognised in Belgium. However, international jurisdiction is excluded for a new action or for an action to modify a maintenance obligation, as long as the creditor still resides in the other EU member state where the original decision was made.

Other legal rules are applicable to applications lodged before the Maintenance Regulation No 4/2009 came into force (ratione temporis).

Liquidation of property regime of spouses after a divorce

The Belgian courts will have to apply the rules of the Matrimonial Property Regulation No 2016/1103 for legal proceedings instituted on or after 29 January 2019.

If the Belgian Court is seized to rule on an application for divorce pursuant to the Brussels IIbis Regulation (or, as of 1 August 2022, the Brussels IIter Regulation), the Belgian court will have jurisdiction to rule on matters of the matrimonial property regime arising in connection with that application. This jurisdiction should not be allowed without the spouses’ agreement (Article 5) if it is based on the following grounds:

• the Belgian court is seized because Belgium is the habitual residence of the applicant (for at least one year before application was made or for at least six months before the application and is a Belgian national);
• the Belgian court is seized in cases of conversion of legal separation into divorce; or
• the Belgian court is seized in cases of residual jurisdiction.

When dealing with separate matrimonial property proceedings following a divorce, the Belgian court has jurisdiction in the following cases (Articles 6 and 7):

• where there is a choice of court agreement;
• where shared habitual residence is in Belgium at the time the court is seized;
• where the most recent habitual residence is in Belgium if one spouse still resides there at the time the court is seized;
• where the respondent is resident in Belgium at the time the court is seized; or
• where both spouses have Belgian nationality.

Other legal rules are applicable to applications lodged before 29 January 2019, when Regulation No 4/2009 came into force (ratione temporis).

Contesting Jurisdiction

The jurisdiction of the Belgian court may be challenged if the above-mentioned rules are not respected. Either party to these financial proceedings 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 by the court before 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 Regulation No 4/2009; Article 18 of the Matrimonial Property Regulation No 2016/1103).

Forum Non Conveniens

In the absence of specific provisions in Regulation 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.

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 service procedure for the divorce proceedings will be followed (see 1.1 Grounds, Timeline, Service and Process (Service of Divorce Petition)).

When dealing with separate matrimonial property 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 concerning 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 matrimonial 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 parties do not agree with the decision of the notary, they can appeal to the court and there it can take at least another year to make a final decision, depending on the judicial backlog. If parties subsequently disagree with the decision of the tribunal of first instance, they can make an appeal and – once again – this may take up to a year or longer to obtain a decision on the appeal.

The proceedings concerning maintenance will take at least one year or longer, depending on the court and the judicial backlog. If an appeal is lodged against the decision, a decision on appeal will also take at least one more year or longer.

Property Regimes and Possibility of Relocation by Judge

The Belgian Civil Code sets out the various matrimonial property regimes. The statutory regime, in the absence of a prenuptial agreement, is a separation of assets with a community of acquisitions. If the spouses want to modify the statutory regime or wish to marry under a separation of property or a universal community of property, a marriage contract must be concluded.

The liquidation of the matrimonial property regime and the division of matrimonial property takes place once the divorce has been granted. In the case of a divorce by mutual consent, the parties must reach an agreement on the division of their matrimonial assets and then the court will grant the divorce. In the case of a divorce on grounds of irretrievable breakdown, a notary will be appointed to carry out the liquidation and division.

The way assets are divided upon divorce is codified in the Belgian Civil Code and can be stipulated in the marital contract. The Belgian court cannot regulate or reallocate assets or resources upon divorce.

However, in the case of a separation of property, the legal concept of a judicial fairness adjustment (Article 2.3.81 of the Belgian Civil Code) allows the court – under very strict conditions – to mitigate the consequences of the dissolution of the marriage. If spouses opt for the system of separation of assets, they must indicate in their marriage contract whether or not they choose to include the possibility of a judicial fairness adjustment, with or without different modalities. If they do, the court may – at the request of the aggrieved spouse ‒ award compensation at the expense of the other spouse under certain circumstances.

Identification of assets

In the case of a judicial liquidation of the matrimonial property regime and division of the matrimonial property, as previously stated, a notary must be appointed. The notary has the responsibility to oversee the various steps in the procedure of liquidation/division.

One such step is the inventory of the estate. Unless all parties waive this requirement and jointly indicate which assets depend on the estate and have to be divided, the appointed notary will draw up the inventory of the estate.

The ex-spouses are ordered to provide all information and documents useful for the fulfilment of the task of liquidating and dividing the matrimonial property. The parties are required to make full declarations under oath. Whoever makes a false statement under oath can be criminally prosecuted for perjury and that person risks losing all claims to the assets they have concealed with fraudulent intent.

Trust Under Belgian Law

Belgian law contains a definition of the legal form of a trust, in accordance with Article 122 of the Code of Private International Law, as follows. “The term “trust” means a legal relationship created by an act of the settlor or by a judicial decision, by which assets are placed under the control of a trustee in order to be administrated in the interest of the beneficiary or for a certain purpose. This legal relationship presents the following characteristics:

• the assets of the trust form a separate estate and are not part of the estate of the trustee;
• 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 [themself] 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, Belgian 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 property regime and marriage contract, if any.

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 continue during the divorce proceedings. Spouses still owe each other support. During divorce proceedings on 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 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, 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 duration of maintenance should not exceed the duration of the marriage.
• If necessary, the court may decide that the benefit will be degressive and to what extent.

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 marriage. 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 ownership 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 Matrimonial 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).

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. Registered partnership can be terminated unilaterally. Some obligations of married couples are applicable to registered partners, such as the obligation to contribute to family expenses in proportion to their income. As far as assets are concerned, they are not subject to a matrimonial property regime the way married couples are. Each of them remains owner of their property and maintains exclusive ownership. If neither of the partners can provide proof of ownership over an asset, said asset is deemed undivided property.

If the relationship between the registered partners is seriously disrupted, the Family Court can order interim measures (eg, maintenance) under certain circumstances. In any event, those measures expire on the day the registered partnership is terminated.

However, there is no legal basis for maintenance after separation for registered partners. Very exceptionally, a form of maintenance may be granted by the court – albeit for a very limited time – during a transitional period. However, the partners may provide for the possibility of maintenance payments under a registered partnership agreement (drawn up by a notary).

Unmarried partners in a de facto cohabitation arrangement lack legal rights and protections. Should they separate, there are no existing legal safeguards in place. The Belgian court can, nevertheless, apply the legal concept of unjust enrichment or enrichment without cause.

Registered partnership or de facto cohabiting partners can also invoke the concept of enrichment without cause. This pertains to a transfer of assets from one individual (the impoverished person) to benefit the assets of another (the enriched person) without any accompanying legal cause (eg, a contractual, legal, or natural obligation).

National Enforcement

A maintenance decision is provisionally enforceable by operation of law unless the Family Court decides otherwise at the request of one of the parties. The creditors can pursue their claim ‒ ie, a bailiff may seize the goods, bank account or wages of a maintenance debtor so that the maintenance creditor can be paid.

A Family Court decision regarding a liquidation/division is provisionally enforceable. The interested party has the right to enforce the judgment, even though the other party may still appeal (albeit at its own risk).

International Enforcement

Decisions regarding matrimonial property law settlements from other EU member states are recognised in Belgium without additional procedures.

If the Matrimonial Property Regulation No 2016/1103 applies, decisions given in an EU member state and enforceable in that state shall be enforceable in Belgium when – upon the application of any interested party – they have been declared enforceable there in accordance with the procedure provided for in Articles 44 to 57 of the regulation (Article 42). If the regulation does not apply in the case of non-EU decisions, Belgian rules of international private law prevail. The date of the document or decision determines which rules apply.

For documents or decisions from 1 October 2004, onwards, the Code of Private International Law applies. Enforcement of an authentic document or decision concerning marital property requires judicial intervention, initiated by a petition to the Family Court.

For maintenance under the Maintenance Regulation No 4/2009, the enforcement depends on whether or not an EU member state is bound by the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (the “2007 Hague Protocol”). If the member state giving the decision is bound by the 2007 Hague Protocol, the decision that is enforceable in that state shall be enforceable in Belgium without the need for a declaration of enforceability (Article 17). If the member state is not bound and the decision is enforceable in that state, the decision shall be enforceable in Belgium when – on the application of any interested party ‒ it has been declared enforceable there (Article 26).

Between Belgium and the third country to which the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (the “2007 Hague Convention”) applies (and the Maintenance Regulation No 4/2009 does not), a decision is enforced under certain conditions (Article 20). On judgments and deeds of countries to which the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the “Lugano Convention”) applies, one must ask the Belgian court to declare this decision enforceable (Article 38 of the Lugano Convention).

If none of the other international instruments apply, Belgian rules of private international law prevail and the enforcement of an authentic document or decision concerning spousal maintenance requires judicial intervention, which is initiated by a petition to the Family Court.

Court hearings are open to the public. This implies that the courtroom doors remain open, allowing not only involved parties but also members of the public (including journalists) to enter.

However, the law specifically mandates for certain proceedings to be held behind closed doors, such as:

• judicial conciliation proceedings addressing the claims of the spouses regarding their mutual rights and obligations and their matrimonial property regime;
• judicial proceedings concerning divorce or legal separation; and
• judicial proceedings concerning legal claims related to these proceedings, if they are dealt with at the same hearing (and, therefore, also proceedings related to the liquidation/division of matrimonial property).

In addition, there is also a specific provision to protect the privacy of the spouses in the case of a divorce on the grounds of irretrievable breakdown (and any associated claims for spousal maintenance and liquidation/division of assets). This is because reporting of such cases in the media is prohibited under penalty of a fine and/or imprisonment.

Belgian law recognises the concepts of mediation, arbitrage, and collaborative negotiations.

Out-of-court mediation is conducted separately from court proceedings. The parties choose by mutual agreement to use a third party (the mediator) to help them resolve their dispute. After reaching an agreement, the parties can either content themselves with this agreement or reinforce its impact by having it made enforceable. If the parties or one of the parties so wishes, a court will homologate the mediation agreement. To do so, the parties must have used an authorised mediator.

Judicial mediation happens in the context of a court case where the court can order mediation ex officio unless both parties oppose it. This form of mediation can also take place at the request of one or both parties. In this case, court proceedings are suspended so that the parties can find a solution to the dispute together through mediation. In family cases, the court is required by law to promote an amicable resolution of disputes at any stage of the proceedings. With a view to reconciliation, the case can be submitted to the Family Court’s amicable settlement chamber. Once they have reached an agreement, the agreement will be included in a judgment that will be ratified by the court and will be enforceable.

A collaborative negotiation is a negotiation between parties, each assisted by a lawyer who has undergone special training and has been recognised as a collaborative negotiator. If the process is successful, the parties sign an agreement that can be submitted by the parties’ lawyers to the competent court for approval.

Parties having a dispute may agree to resort to an arbitration tribunal. This allows the parties to have their dispute resolved not by the courts of law but, rather, by one or more arbitrators chosen and remunerated by the parties. The arbitration tribunal makes an arbitration award after hearing the parties and studying the documents communicated on file.

In cases with international elements, Belgian private international law determines the jurisdictional rules of the Belgian courts.

The child’s habitual residence is the main criterion. In some cases, the child’s nationality or the location of the parents’ property may also serve as a jurisdictional connecting factor.

Parental Responsibility and Protection of Minors

If the minor child is habitually resident on the territory of a member state of the Brussels IIter Regulation/Brussels IIbis Regulation (depending on the date of the application), the court will apply that regulation.

As a general rule, the Brussels IIter Regulation states that the Belgian courts have jurisdiction in matters of parental responsibility over a child who is habitually resident in Belgium at the time the court is seized. The habitual residence of the child is the place where the child has their centre of social life and will be determined on the facts of the case.

It is also important to note that the Belgian jurisdiction will be assessed at the time the court is seized. This means that a potential relocation of the child to another country during the Belgian proceedings will not affect the international jurisdiction of the Belgian court.

However, the Brussels IIter Regulation states some exceptions for example in cases of lawful move of a child or wrongful removal or retention (Articles 8, 9, 10, 11 and 12). If the child has their habitual residence in the territory of a state that is not a member of the Brussels IIter Regulation, the Belgian court will apply the rules of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children if the state where the residence of the child is fixed is subject to it.

According to the Hague Convention of 19 October 1996, a court may have jurisdiction based on:

• the habitual residence of the child (Article 5);
• as regards refugee children, or children whose habitual residence cannot be established, the presence of the child (Article 6);
• in the case of a wrongful removal or retention of the child, the habitual residence of the child immediately before the removal or retention of the child (Article 7);
• in exceptional cases, a contracting state that is better placed to assess the best interests of the child (Articles 8 and 9);
• the discretion of the court to protect the body or property of a child where the court is determining divorce or separation of the parents (Article 10); or
• exceptional jurisdiction limited to urgent and provisional measures (Articles 11 and 12).

If no state bound by the Brussels IIter Regulation or the Hague Convention of 19 October 1996 has jurisdiction under these instruments, the Belgian court will apply the rules of Belgian Code of Private International Law and may have jurisdiction in the following cases:

• the defendant has their domicile or habitual residence in Belgium (Article 5);
• close ties with another case pending before a Belgian court – in which case, it is preferable to assess these cases together (Article 9);
• exceptional jurisdiction when there are very close ties to Belgium and proceedings in another country are impossible or it would be unreasonable to demand the proceedings be filed in another country (Article 11);
• the child has Belgian nationality (Article 32); and
• the management of assets located in Belgium (Article 33).

Maintenance Contributions for Children

With regard to maintence contributions for the children, the Belgian court will apply the Maintenance Regulation 4/2009 of 18 December 2008. As a general rule, the Article 3 of the Maintenance Regulation 4/2009 states that the Belgian courts have jurisdiction if:

• the defendant is habitually resident in Belgium;
• the creditor is habitually resident in Belgium; or
• the Belgian court, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person or concerning parental responsibility where the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the natnaionality of one of the parties.

However, the Maintenance Regulation 4/2009 also puts a limit on proceedings. Where a decision is given in an EU member state or a 2007 Hague Convention contracting state in which the creditor is habitually resident, proceedings to modify the decision or to obtain a new decision cannot be brought by the debtor in any other member state as long as the creditor remains habitually resident in the state in which the decision was given. Exceptions apply (Article 8).

Jurisdiction of Family Court

Disputes between parents regarding a (minor) child’s living arrangements, the right to personal contact, and maintenance fall within the jurisdiction of the Family Court.

An application regarding parental authority, a minor’s living arrangements, the right to personal contact, or maintenance may be filed:

• by writ of summons served on the defendant by a bailiff on behalf of the plaintiff;
• by petition served on the defendant by the clerk of the Family Court on request of the plaintiff; or
• by joint petition by the clerk of the Family Court on request of both parents.

The applications are considered urgent by the court and judgment shall be given as in interlocutory proceedings.

Appearance in Person

The appearance of both parties in person at the introductory hearing is obligatory in cases pertaining to:

• separate residence;
• parental authority;
• a child’s living arrangements or the right to personal contact; or
• maintenance.

However, in all proceedings concerning minors, the requirement for both parents to appear in person is extended to all hearings on which questions regarding the minors will be discussed and to all hearings of pleading. In exceptional circumstances, the court can grant an exception to this obligation to appear in person.

Interest of Child

In all applications regarding a minor, the interest of the child plays a key role. In this regard, the Family Court can take all measures or necessary acts of investigation – for example, to understand the child’s personality and the environment in which they are being brought up in order to determine their best interests and the most appropriate means of their upbringing or treatment. As such, there are no restrictions on the court’s ability to make an order as to a child’s living and contact arrangements, except for the rule that it must be in the best interest of the child.

The court may order a social examination through the competent social service or submit the child to a medical-psychological examination. Where appropriate, the court may also take into account the opinion of the minors themselves (see 3.3 Other Matters).

Parental Responsibility and Custody

As a general rule, parental responsibility is exercised jointly by both parents. This means that the parents must decide together on the important issues relating to the maintenance and upbringing of the children. In exceptional circumstances, the court can deviate from the general rule of joint parental authority, but this is rather rare and there must be a strong argument for imposing exclusive parental authority.

As regards custody, evenly divided housing or residence of the child is the preferred arrangement.

The rules of parental responsibility and custody are the same whether or not the parents are married, living together or separated.

In cases where the parents are no longer living together, and they do not agree on the children’s residence, the court must examine as a matter of priority whether the preferred arrangement (ie, the evenly divided residence 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 of their parents. The court can also take into account the interests of the parents but only if the interest of the child is not compromised.

In assessing the evenly divided residence of the child, the court can – among other things – take the following 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 capabilities of the parents.

Possible reasons to deviate from the evenly divided residence of the child are:

• considerable geographical distance;
• unavailability of one of the parents;
• manifest indifference;
• young age of the child; and
• keeping siblings together.

Child Maintenance

The general rule when it comes to child maintenance is that all parents must provide housing, maintenance, health, supervision, education, training and development for their children in proportion to their means. This obligation applies during the minority of the child; however, if the education of the child is not completed, the obligation continues beyond the child’s age of majority (ie, the age of 18).

The means of the parents include all professional, personal 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 aggregate resources.

A child has the right to share their parents’ standard of living. If one of the parents does not fulfil their obligation to provide for their child or children, the other parent can claim child maintenance payments to cover these costs, which include the ordinary costs as well as the 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 a maintenance regime. It also requires the Court to include these eight parameters in his judgment and to clarify how he 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 contribution in kind of each of the parents to the child’s maintenance as a result of this residence arrangement;
• 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 203quater 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 is always changeable and 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 of the parents. This is to prevent, for instance, a parent deliberately taking measures to lower their income with the only goal being to reduce child maintenance payments.

The parents can always reach an agreement regarding child maintenance payments. However, given that the obligation of the parents to provide housing, maintenance, healthcare, supervision, education, training and development for their children in proportion to their means is a matter of public policy, one cannot state that one parent is relieved of this obligation. However, this does not mean that it would not be possible to determine that no child maintenance is due. If the parents wish to be able to enforce this agreement, they can ask the court to homologate their agreement, whereby the court may assess the content of this agreement against the best interests of the child.

Components of Parental Authority

The upbringing of a child is part of parental authority.

Parental authority, as well as the housing of minor children, are matters of public policy. This means that the measures taken in this context should always correspond to the best interests of the child. When parents disagree on how to raise a child (eg, regarding schooling or medical choices), a parent can initiate a proceeding. When ruling on the dispute brought before the court, the judge will take the best interest of the child into consideration (see 3.2 Living/Contact Arrangements and Child Maintenance).

Parental Alienation

There are not any specific provisions regarding parental alienation in Belgian law, but the topic has gained more and more attention. However, it is not easy for the court to establish parental alienation and courts are therefore very cautious in citing parental alienation in their judgments and will only do so if confirmed by an expert.

In the case of parental alienation, the court can take certain measures – for example, imposing an equally divided residence between both parents or, in very severe cases, the court may also decide to completely overturn the residence arrangement. Another option is to impose a visitation in a neutral visiting room. However, there is no sanction for non-compliance with this measure, unless a parent seeks a penalty payment. Another option is to engage family mediation. Some courts also apply the Cochem model, whereby the court tries to restore the parents’ sense of responsibility in order to find an agreement in the best interests of the child. The court may also order psychological support for the child.

If Family Court proceedings are not sufficient, then ‒ according to some judges ‒ it is necessary to proceed under juvenile protection law. In that case, the juvenile court has a number of other tools at its disposal, such as counselling of the child and placement of the child in serious cases of parental alienation.

Hearing of Minor by Judge

If the minor is younger than 12 years old, they will be heard at their own request or at the request of the parties, of the public prosecutor or, ex officio, of the court. The judge may refuse to hear a minor under 12 years of age, except when such a request is made by the child or by the public prosecutor.

If the minor is 12 years old, they will be informed by a letter from the court of their right to be heard. However, the child is never obliged to be heard and can refuse.

The court will hear the minor at a place it considers appropriate and, unless the court decides otherwise, the hearing will take place with no one else present except for the clerk of the Family Court. The record of the interview is attached to the court file and reflects what the minor has said. The minor is informed that the parties may take note of it. If, during the interview, the court finds that the minor does not have the necessary discernment, a note will be made of this in the report.

The interview with the minor will not have the effect of making them a party to the proceedings. Appropriate importance shall be attached to the minor’s opinion in accordance with their age and maturity.

See 2.9 Alternative Dispute Resolution (ADR).

As explained in 2.8 Media Access and Transparency, court hearings are open to the public. Proceedings regarding parental authority, child maintenance, upbringing, education and cross-border custody and visitation rights (as well as legal claims related to these proceedings, if they are dealt with at the same hearing) are exceptions to the general norm and are not accessible to the public or the press.