Filing for divorce – nuanced version for Belgium

Filing for divorce with or without your partner?

You can apply for divorce together with your partner or on your own.

• Together with your partner: in that case, divorce by mutual consent is usually the first option, although a joint claim for divorce on the ground of irretrievable breakdown is also possible.
• Without your partner: in practice, this means a divorce based on irretrievable breakdown.

Divorce based on irretrievable breakdown versus divorce by mutual consent

Belgian law recognises two main forms of divorce:

• Divorce by mutual consent
• Divorce on the ground of irretrievable breakdown of the marriage

In a divorce based on irretrievable breakdown, the judge grants the divorce once it is established that the marriage has broken down beyond repair. This means that continuing married life can no longer reasonably be expected and that a resumption of cohabitation is no longer realistic. That breakdown may be shown through facts, through a period of factual separation, or through a repeated request.

In a divorce by mutual consent, the spouses must agree on the personal, family-related, and financial consequences of the divorce. Those arrangements are recorded in a mutual consent agreement and then submitted to the judge.

The key legal nuance here is this: the way a divorce based on irretrievable breakdown is initiated depends on the legal ground being relied on. So it is too broad to say, without further explanation, that a unilateral divorce of this kind can always be started “by petition or by summons.”

• Article 229, §1 of the Civil Code: where irretrievable breakdown is proven by all lawful means, the case is in principle initiated by summons.
• Article 229, §2 of the Civil Code: where both spouses rely on a sufficiently long period of factual separation, the case is in principle initiated by a joint petition.
• Article 229, §3 of the Civil Code: where only one spouse relies on a sufficiently long period of factual separation, the case is in principle initiated by petition.

In both cases, it is ultimately the family court that grants the divorce.

Divorce and a lawyer?

A lawyer is not mandatory in every case, but is often very useful. A lawyer can help with:

• choosing between mutual consent and irretrievable breakdown;
• advice on children, residence arrangements, maintenance, and assets;
• drafting agreements;
• handling the proceedings before the family court;
• requesting urgent or interim measures.

Even when the other spouse has already started proceedings, it can be wise to seek legal advice quickly. Ideally, a good lawyer does more than litigate: they also help assess risks and, where possible, work toward a practical settlement.

Divorce and a notary?

When spouses want to separate by mutual agreement, a notary may play a role in drafting the arrangements, especially where real estate or other assets requiring a notarial deed are involved.

A notary is not required in every mutual consent divorce. This is mainly the case where the law requires a notarial deed for certain arrangements.

A notarial agreement does, however, offer important advantages:

• it is usually drafted very precisely;
• it provides greater legal certainty;
• in some cases, it has stronger enforceability than a private agreement.

On the other hand, a mutual consent divorce with notarial involvement assumes that a sufficient level of agreement already exists. If key issues are still disputed, further negotiations, mediation, or legal assistance are often advisable.

Divorce and a mediator?

Mediation has played an important role in divorce matters for years. A mediator helps both parties stay in dialogue and work out solutions together, without imposing a decision.

The benefits of mediation often include:

• a faster process;
• less escalation;
• often lower costs than fully contested litigation;
• more room for workable agreements on children and finances.

The courts themselves also often encourage consultation or amicable settlement. If mediation fails, a traditional court procedure remains possible.

Filing for divorce using a form?

Many people search online for a standard form to apply for divorce. In reality, there is no simple standalone form that allows you to obtain a divorce outside the legal procedure. The judge grants the divorce on the basis of the required procedural documents.

For a divorce based on irretrievable breakdown, it is essential to look not only at the form of the filing, but above all at the legal ground.

• Where irretrievable breakdown is proven by all lawful means, the proceedings in principle take place by summons.
• Where the breakdown is inferred from a period of factual separation, the proceedings in principle take place by petition, with a distinction between joint and unilateral claims.

So where specific facts are relied on, a summons will often be the correct route. A summons is an official notice requiring a person to appear before the court, and it is served by a bailiff.

A divorce by mutual consent is in principle started by a joint petition signed by both spouses, or at least filed in accordance with the applicable procedural rules by a lawyer or notary.

Filing for divorce: documents

The required documents depend on the type of procedure and the family situation. They often include:

• proof of identity;
• proof of nationality;
• proof of current residence, where relevant;
• an extract from the marriage certificate;
• extracts from the birth certificates of the common children;
• a copy of the marriage contract, if there is one.

Depending on the case, additional documents may be required. It is therefore wise to check in advance which documents the competent family court or your adviser will specifically ask for.

Once the divorce is final and has been recorded in the civil status registers, you can request a divorce certificate from the municipality.

Divorce: costs

The cost of a divorce depends on the chosen procedure, the complexity of the case, and whether a lawyer, notary, bailiff, or mediator is involved.

As a general rule:

• divorce by mutual consent is usually cheaper because the parties cooperate;
• divorce based on irretrievable breakdown is often more expensive, especially if a summons, service of documents, or additional hearings are required.

In a breakdown-based divorce, there may for example be additional costs for the bailiff and for service of the judgment. In a mutual consent divorce, procedural costs are often more limited, although negotiations about assets and children may still take time and generate costs.

Court fees, contributions, and other legal costs may change over time. So for current rates, it is always better to check a recent estimate or an official source.

Divorce: how long does it take?

The duration of a divorce depends greatly on the route chosen.

A divorce by mutual consent is often faster because both parties already have an agreement or work on that agreement together. The court phase itself may be relatively limited, but preparing the arrangements can still take time.

In a divorce based on irretrievable breakdown, timing is harder to predict. It depends in particular on:

• the legal ground chosen;
• whether there has already been a sufficiently long period of factual separation;
• the extent to which the other party cooperates or contests the case;
• whether there are disputes about children, maintenance, or assets.

Anyone looking for a precise timeline should therefore seek advice tailored to their own case.

Divorce in the law

Legally speaking, divorce is not simply a contractual ending, but an action that changes a person’s civil status. That is why it is a procedure of a personal nature and subject to rules of public policy.

Divorce in the Civil Code

The core rules on divorce itself are found in the Civil Code:

• Article 229 of the Civil Code: divorce on the ground of irretrievable breakdown;
• Article 230 of the Civil Code: divorce by mutual consent.

In a breakdown-based divorce, proof may therefore be built in different ways. That is exactly where the nuance matters: the evidential ground chosen also affects how the procedure must be initiated.

Divorce in the Judicial Code

The procedural rules are set out in the Judicial Code.

• For irretrievable breakdown, the relevant rules can be found from Article 1254 of the Judicial Code onwards.
• For divorce by mutual consent, the procedural rules are set out in Articles 1287 to 1304 of the Judicial Code.

Divorce: going before a judge

In Belgium, it is still the judge who grants the divorce. A marriage therefore cannot be definitively dissolved purely by private agreement without the involvement of the competent family court.

• Divorce before the family court

The competent court is the family court.

For a divorce based on irretrievable breakdown, this will generally be the family court of the defendant’s residence or of the last marital residence, subject to special rules.

For a divorce by mutual consent, specific jurisdiction rules apply. Since 1 September 2018, spouses in a mutual consent divorce can no longer freely choose the family court where they file their petition. In principle, the family court of one of the spouses’ current residences is competent if the parties agree. If not, the family court of the last marital residence comes into play. Where there are common minor children, additional jurisdiction rules may apply.

• Divorce by summons

A summons is not simply an optional route for every breakdown-based divorce. In a divorce based on Article 229, §1 of the Civil Code, summons is in principle the correct method of starting the case. That is exactly the nuance that a general text should make explicit.

• Divorce by petition

A petition is a common way to start divorce proceedings, but here too distinctions matter:

• joint breakdown-based divorce relying on factual separation → petition;
• unilateral breakdown-based divorce relying on factual separation → petition;
• divorce by mutual consent → joint petition.

So the statement that “a unilateral breakdown-based divorce can be started by petition or summons” is too general unless it is immediately explained what that depends on.

• Divorce by default

Default arises where a party does not appear or does not participate as required by the procedure. In a breakdown-based divorce, the judge may in some cases order the parties to appear in person, for example to explore reconciliation or to discuss arrangements for the children.

If a party then fails to appear, that may have procedural consequences. Exactly what those are depends on the specific stage of the case and the applicable rules of the Judicial Code.

In a mutual consent divorce, the procedure is in principle written, although the judge may exceptionally also order personal appearance.

• Divorce final between the parties

A divorce is not final at the very moment the judgment is delivered. First, the time limits for appeal and, where required, service of the judgment must be taken into account.

For a judgment in a mutual consent divorce, appeal is only possible in limited situations, and the appeal period is in principle one month from the judgment.

• Registering the divorce with the municipality

As against third parties, the divorce only becomes enforceable once it has been transcribed in the civil status registers, more specifically through the civil status database.

• Service of the divorce judgment

In a breakdown-based divorce, service of the divorce judgment matters because it may trigger the time limits for legal remedies. In a mutual consent divorce, the situation is different because the procedure is based on agreement and special appeal rules apply. So here too, it is better to avoid broad statements that do not distinguish between the two procedures.

Divorce before a Belgian court

A Belgian court may also have jurisdiction over a marriage concluded abroad. This may be the case, for example, where:

• both spouses have their habitual residence in Belgium;
• their last habitual residence was in Belgium and at least one of them still lives there;
• the defendant has habitual residence in Belgium;
• in a joint application, at least one spouse has habitual residence in Belgium;
• the applicant has lived in Belgium long enough;
• certain nationality conditions are met.

In international cases, the legal analysis is often technical. Legal advice is therefore almost always recommended.

Divorce under Belgian law?

Even if a Belgian court has jurisdiction, that does not automatically mean Belgian law will always apply. Conversely, Belgian law may sometimes still play a role in a case involving foreign elements.

In practice, attention is often paid to factors such as:

• the spouses’ habitual residence;
• their last common residence;
• their nationality;
• the jurisdiction of the Belgian court.

In exceptional situations, Belgian law may still apply where divorce would be impossible under the otherwise applicable foreign law, or where there is no equal access to divorce.

Legalising and recognising a foreign divorce?

A foreign divorce can often be recognised in Belgium without a separate court procedure, but that does not mean there can never be any review. In some cases, recognition may be refused, for example where fundamental procedural rights were not respected.

It must also be checked whether the foreign judgment or record first needs to be legalised or provided with an apostille. That depends on the country of origin and the applicable international rules.