Belgian Family Law: Divorce, Matrimonial Regimes, and Legal Cohabitation

Types of Divorce in Belgium

There are two primary categories of divorce within the Belgian legal system: EOT and EOO.

  • EOT: Echtscheiding door Onderlinge Toestemming (Divorce by Mutual Consent)     * Nature: Described as the fastest, most cost-effective, and most "mature" or "serene" way to separate.     * Requirements for Success:         * Agreement on the Divorce: Both spouses must fundamentally agree that they wish to end the marriage.         * Agreement on Urgent and Provisional Measures: This includes reaching a consensus on technical details such as:             * Child Custody: Where do the children stay and for how long?             * Child Maintenance (Onderhoudsgeld): Determining the amount and duration of payments for children.         * Agreement on Personal Alimony: Any payments required for the maintenance of a former spouse must be agreed upon.         * Agreement on Liquidation and Distribution (Vereffening-verdeling): Decisions must be made regarding the division of all assets ("Who gets what").     * Practical Hurdles: The EOT process cannot be completed as long as there is no agreement on every single asset.         * Verbatim Example: If a couple received a porcelain dinner service from a "great-aunt of blessed memory" at their wedding and both partners want it, the EOT cannot proceed until the dispute over that specific item is resolved.

  • EOO: Echtscheiding op Grond van Onherstelbare Ontwrichting (Divorce based on Irretrievable Breakdown)     * Nature: This procedure can be started unilaterally by one spouse.     * Timelines and Procedures:         * Mutual Consent Development: If, during an EOO started by one person, the other partner eventually agrees to the divorce, the court requires a visit. There is a specific waiting period to prevent impulsive decisions.         * The Cooling-Off Period (Bekoelingsperiode): A duration of 33 months is mandated before the divorce is officially pronounced. This is designed to ensure that the couple has not simply reacted to a temporary argument.         * Unilateral Divorce (Opposition): If one spouse refuses to divorce, the process can take up to 11 year. Under Belgian law, one can remain married against their will for a maximum of 11 year.     * The Impact of De Facto Separation (Feitelijk Gescheiden):         * If the partners already live at different addresses, the 11 year period starts counting from the moment they separated physically.         * If they still live together, the 11 year count begins at the official start of the legal procedure (the filing of the petition/verzoekschrift).

Legal Measures During and After Divorce Proceedings

  • Urgent and Provisional Measures (Dringende en Voorlopige Maatregelen):     * Because the final distribution of assets can take a long time, the court decides on immediate practicalities that serve the interests of all parties involved.     * Key Decisions Include:         * The Marital Home: Who is allowed to remain in the marital home temporarily during the proceedings, regardless of who will eventually own it?         * Children: Temporary residence and maintenance payments.         * Financial Obligations: Who is responsible for paying current debts or credit installments that cannot wait for the final divorce decree.     * Duration of Measures: Most measures in this category are temporary ("provisional"). However, measures regarding children usually persist after the divorce because it is deemed irresponsible to constantly alter a child's living arrangements.

  • Liquidation and Distribution (Vereffening-verdeling):     * This process formally begins only after the divorce decree is finalized.     * The divorce judgment will explicitly name a notary to whom the parties must turn to settle the distribution of their assets.

Matrimonial Regimes (Huwelijksstelsels)

Spouses can choose their financial arrangements via a marriage contract at a notary. If they do not, a default system applies.

  • The Statutory Regime (Wettelijk Stelsel):     * This is the most common system in practice, chosen by approximately 60 %60\,\% of couples.     * Structure of Assets: It consists of three distinct estates:         1. Own Estate of Partner 1: Assets owned before marriage, or acquired through inheritance or gifts during marriage.         2. Own Estate of Partner 2: Assets owned before marriage, or acquired through inheritance or gifts during marriage.         3. Common Estate (Gemeenschappelijk Vermogen): Assets and income acquired during the marriage.

  • Separation of Property (Scheiding van Goederen):     * This regime is increasingly popular today compared to 3030 years ago.     * Principle: Each partner maintains their own assets and income.     * Undivided Property (Onverdeeldheid): For items bought together (e.g., a car or a washing machine), a specific "undivided part" is created. This part is split in half (split into 22) in the event of death or divorce.

  • Universal Community of Property (Algehele Gemeenschap):     * A system where theoretically everything is shared, though current law allows for more nuanced contracts.

  • Contractual Clauses:     * Couples can include specific clauses like "the survivor gets everything" (langstlevende krijgt alles) or other choice-based options (keuzebeding).

Comparison: Marriage vs. Legal Cohabitation (Wettelijk Samenwonen)

While legal cohabitation and marriage share some similarities (such as tax benefits/personenbelasting and certain protections), they differ significantly in three main areas:

  • 1. Inheritance Law (Erfrecht):     * Legal Cohabitants: By law, they only inherit the usufruct (vruchtgebruik) of the family home and its furniture. This right can be revoked or changed via a testament.     * Spouses (Gehuwden): They have a much broader inheritance right, receiving usufruct over the entire estate. Furthermore, a spouse cannot be fully disinherited; they will always retain at least the usufruct of the family home.

  • 2. Maintenance and Assistance (Bijstand en Bijdragen):     * Contribution to Costs: Both groups must contribute to the costs of living according to their means.     * Assistance Obligation: Spouses owe each other assistance even after the marriage. An ex-spouse can claim an alimony allowance (alimentatievergoeding), whereas an ex-legal cohabitant generally cannot.     * Survivor's Pension (Overlevingspensioen): Spouses are entitled to a survivor's pension; legal cohabitants are not.

  • 3. Property and Assets (Vermogens):     * Legal Cohabitation: The principle is simple—everyone keeps their own goods. Ownership is determined by whose name is on the invoice.     * Marriage: Couples can choose separation of property via contract, but if they do not, certain goods automatically enter a communal marital estate which can be specifically regulated for cases of death or divorce.

Questions & Discussion

  • Discussion on GDPR and Data Minimization:     * A brief mention was made regarding the necessity of using only minimal, relevant data as requested/necessary.     * Note for Exam: The speaker explicitly stated that this specific part (procedural details regarding minimal data) will not be asked on the exam, as the focus should remain on the core legal material regarding divorce and matrimonial regimes.