Divorce on the grounds of irreparable disruption?
When divorce by mutual consent fails, you may consider initiating divorce proceedings on the grounds of the irretrievable disruption of the marriage.
But what exactly is ‘the irretrievable disruption of the marriage’? The legal definition does not make us much wiser: ‘The marriage is irretrievably disrupted when the continuation of the cohabitation between the spouses and its resumption have become reasonably impossible due to that disruption’ (Art. 229, § 1 old Civil Code).
The irretrievable disruption of the marriage is a ground for divorce that can take different forms. The law distinguishes between the hypothesis that one of the spouses files for divorce and the hypothesis that both spouses jointly file for divorce. The court pronounces the divorce when it finds that the marriage has been irretrievably disrupted.
Irretrievable disruption has three different forms. Depending on the case, the terms and conditions differ. In this Wanted Fact, we give an overview of these three possibilities.
1. Concrete facts indicating the irretrievable disruption of the marriage (229 BW, §1 old CC)
This is the so-called ‘de plano divorce’. Here the divorce can be pronounced immediately at the preliminary hearing. This is done on the claim of one spouse, where specific faults of one or the other spouse are shown.
Many examples can be found in case law, such as:
- adultery;
- acts of violence;
- abandonment of the marital home;
- husband's repudiation of his wife abroad without the wife being present;
- etc.
The spouse claiming irreparable disruption must prove the facts. Proof of this disruption can be provided by any legal means. Even one's own adultery can prove the existence of the disruption.
In practice, however, we see that ‘the plano divorce’ has become rather the exception, and this because of the success of the other forms.
2. At the joint request of both spouses (Art. 229 BW, §2 old CC)
This form of appearance is very common in practice. When the application is made jointly by the two spouses, the court must pronounce the divorce when the spouses have been effectively separated for at least six months at the time of appearance before the court.
Thus, there are two conditions attached to this principle to prove irreparable disruption:
- de facto separation of more than six months;
- the agreement of both spouses to divorce.
The actual separation may be proved by any means of law. The easiest way is to prove it using an extract from the civil registry, which shows that the spouses have been registered at a different address for more than six months. In some cases, one can also prove the de facto separation on the basis of a rental agreement, electricity and water bills, but registration at another address is the most conclusive proof of the de facto separation.
If, at the time of their appearance before the court, the spouses have not yet been effectively separated for at least six months (or this cannot be proven), they can obtain the divorce via the so-called ‘repeated request’. Here, the spouses must jointly express their desire for divorce before the court twice, at least three months apart (in accordance with art. 1255, §1,2nd paragraph of the Judicial Code).
Note: with these grounds for divorce, the will to divorce is present in both parties!
3. Factual separation of one year (Art. 229, §3 old CC)
Irreparable disruption also exists when the application is made by a single spouse after more than one year of de facto separation.
If one of the spouses files for divorce and the other spouse does not agree, the court will still immediately pronounce the divorce if one year of de facto separation is proven.
If the spouses have not yet been effectively separated for at least one year (or this minimum duration cannot be proven), they can again make use of the ‘repeated request’. In this situation, the second hearing must take place (in accordance with Article 1255, § 2, 2nd paragraph of the Judicial Code):
- either immediately following the expiry of the one-year term;
- or one year after the first hearing.
At this second hearing, the court then pronounces the divorce, if requested by one of the spouses.
A spouse can therefore stop the divorce sought against him or her for a maximum of one year.