Divorce by mutual consent or on grounds of irretrievable disruption
When you wish to divorce, there are two options, namely divorce by mutual consent or divorce on grounds of irretrievable disruption.
If spouses wish to opt for the first procedure (divorce by mutual consent), agreements are needed between the two parties on material and family matters. These agreements, also known as the divorce agreement, need ratification by the family court. Without court intervention, there is no possibility of divorce in Belgium.
The divorce by mutual consent procedure is a fully written procedure that eliminates the need for you to appear in person before the family court. In exceptional cases, the court can still impose a personal appearance on the parties.
The divorce agreement consists of:
- On the one hand, a settlement deed that defines the mutual rights between the parties (e.g. allocation of property, division of financial accounts, division of furniture, etc),
- On the other hand, a family law agreement containing the residence of the spouses during the divorce proceedings, as well as an arrangement for the children and the arrangement on benefits between spouses.
The process of divorce by mutual consent is further explained in this Wanted Fact.
1. The settlement deed
This part of the divorce agreement contains the liquidation and distribution of the matrimonial property. These provisions will therefore only take effect after the divorce has become final. Among other things, the spouses will have to determine what to do with the existing property, and they will have to divide the financial accounts.
In addition, this part of the divorce agreement will also have to regulate the mutual inheritance claims of the spouses. This aspect has effect from the filing of the divorce petition with the Family Court. An inventory of the assets present drawn up by a notary (a notarial inventory), is not required. The spouses can also draw up a private inventory, or waive this if the assets have already been divided. If one of the spouses wants to take over the property, it can benefit from the favourable division rate of 1% registration duty (the so-called misery tax). The final allocation must be done by notarial deed, but the spouses can already agree in a private deed who will take over the property.
It is therefore not required that the mutual consent agreement is also notarised. You therefore do not need to go to a notary for this. Your lawyer is the best adviser for this matter.
2. The family law agreement
This part of the agreement contains an agreement regarding the residence of the spouses during the trial period (= period between the signing of the agreement and the divorce judgment), the children and the payment between spouses. Spouses should inform and keep each other and the court informed of their whereabouts. It is not necessary for the parties to live separately to initiate the divorce: they may also continue to live together!
The children's residence and living arrangements must be precisely determined, as well as the exercise of parental authority and maintenance/education contributions. The public prosecutor will give an opinion on the arrangement related to the children. But the spouses must therefore draw up a precise arrangement that will also be checked by the court.
How does the procedure proceed?
After the divorce agreement is signed by both spouses, they will file a joint petition at the registry of the Family Court. For this, they will pay a roll fee of EUR 165.00 and a contribution of two times EUR 24.00 for the Secondary Assistance Fund (figures 2024). This petition is signed by:
- Either by both spouses;
- Either at least one lawyer;
- Either by one notary public.
One original and one copy of the petition and its annexes (see below) shall be filed. If there are minor children, one original and two copies of the petition and annexes will be filed.
In principle, the competent court is the family court of one of the spouses' current places of residence. If the spouses do not agree on this, the court of the place where the last marital residence was is competent. Do know that the court where the case was brought will also have jurisdiction again later if, for example, the residence arrangements for the children need to be changed (= the family court's continuing saisine).
What documents do you need when filing the petition?
The signed divorce agreement should be attached to the petition, the inventory should also be attached. In addition, a lot of administrative documents are also required, which you can request from the civil registry:
- Certificate of residence both spouses;
- Extract from the birth certificate of both spouses;
- Extract from the birth certificate of the children;
- Extract from the marriage certificate;
- Proof of nationality of the spouses.
If the spouses and children are listed in the National Register of Natural Persons, they should not deposit the following documents:
- an extract from the birth certificates of the spouses, insofar as they were born in Belgium;
- an extract from the birth certificates of the children, insofar as they were born in Belgium;
- an extract from the marriage certificate, if the marriage took place in Belgium;
- a certificate of nationality of each of the spouses.
However, if both spouses are registered in the National Register of Natural Persons in Belgium but married abroad, the extract of the marriage certificate will be required.