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For the effects of marriage: the applicable law is that of the locality where the parties had their common habitual residence. Where there is no common habitual residence then, the law to be applied is the law of the country from which both spouses draw their nationality. If neither applies, then Belgian law shall be the applicable law.

For divorce: the applicable law is that of the locality where the parties had their common habitual residence. If there is no common habitual residence, at the time of the divorce and one spouse is still residing in Belgium, then the law to be applied is that of the locality where the parties had their last common residence. Where there is no common residence then, the law to be applied is the law of the country from which both spouses draw their nationality. If none of the above applies, then Belgian law shall be applied.

Pre-Nuptial Agreements

Enforceable.

Divorce

Divorce may be on one of two grounds:

Mutual Consent; or
Irretrievable breakdown.

The Irretrievable breakdown grounds can be used where:

There has been a separation of one year and one spouse asks for divorce;
There has been a separation of six months and both spouses ask for divorce; or
There is an irretrievable breakdown of the marriage proved by any means (notably by way of showing fault).

Divorce is initiated by the filing of a petition.

Finances/Capital/Property

Community of property regime.

Capital is split 50/50 between the parties upon divorce.

Pre-marital assets and inherited wealth are excluded.

It is possible for the parties to choose another method of separating the assets by completing a prenuptial agreement.

Finances/Maintenance

Maintenance can be awarded during the divorce proceedings where one spouse earns less than the other. The spouse requesting maintenance needs to show that maintenance is required to enable them to live in the same condition as the parties did during their married life.

After a divorce under the irretrievable breakdown ground, alimony can be awarded to the spouse in need. The amount has to at least cover the state of need of the beneficiary. The court will take into account the income of the spouses and any significant degradation of the beneficiary’s economic situation taking into account the age of the parties, the duration of the marriage and their behaviour. In particular, the court will also consider who is to care for the children. The alimony cannot however exceed one third of the net income of the paying party.

The court can refuse to accede to the request of alimony if the paying party can prove that the applicant committed a “serious fault” during the marriage and, in doing so, made it impossible for the continuation of the marriage.

No maintenance allowance will be granted to a husband recognised as being guilty of violence towards their spouse.

The court can replace it by capital homologue where there is common consent or a request is made to the court.

The pension will be assigned, allowing exception, for the period of the marriage. The assignment can be graded. It can also be replaced by a lump sum if, maintenance can be index linked.

Maintenance stops automatically on remarriage but not on cohabitation (depends on the diminution of living costs where a beneficiary is sharing them with a new partner).

In cases of divorce by mutual consent, maintenance can be awarded if both spouses agree.

Child Maintenance

This is calculated by reference to the needs of the child and the resources of the parents. Maintenance continues after the age of 18 if the child is still in education. The amount can be agreed between the parties and then authorised by the court, if it considers it reasonable.

Cohabitants

The law of 23 November 1998 which came into force on 1 January 2000 introduced a new status called ‘legal cohabitation’. Two persons, of different or same sex can make a declaration of legal cohabitation in front of an Officer of the State.

Cohabitation, of itself, has no effect on the property rights of the parties. In property disputes the court can look beyond the legal title to the ‘reality’ of ownership.

Legal cohabitants have the same protection as married spouses; neither cohabitant can make any prejudicial disposition of his or her interest in their main home or home contents without the other’s consent.

Civil Partnership/Gay Marriage

Same sex marriages are possible in Belgium.

With thanks to Dr Jehanne Sosson of Wouters-Sosson, 87, avenue Louise- B17, 1050 Brussels. Belgium. www.wouters-sosson.com