What are the conditions for divorce by mutual consent?

No substantive requirements

To start the proceedings, there are no substantive law requirements to be met. For instance, there is no minimum age requirement, so that even emancipated minors can start the proceedings. In addition, there is also no minimum duration of marriage required. 

An exception exists for the legally incapacitated. These persons cannot independently give their consent to divorce. Representation is also not possible here due to the highly personal nature of this procedure. Moreover, the justice of the peace may, within the scope of the judicial protection measure, prohibit the filing of the claim for divorce by mutual consent (Article 492/1, § 1, paragraph 3, 5° old Civil Code).

For those placed under a judicial protection order, the judge will have to grant an authorisation. This way, that person can still give their consent. The person must request this authorisation himself. This request must be accompanied by an elaborate medical certificate (art. 1241, first paragraph Judicial Code). The judge will then rule on the person's legal capacity.

The formal requirements

Throughout the proceedings, the spouses must agree on all aspects concerning the divorce, including all its consequences. The agreements on these aspects are recorded in the so-called DMC agreement. This mainly concerns:

• the division of immovable and movable property = property agreement;
• the maintenance and settlement of the children = family law agreement. 

The judge will only formally pronounce the divorce.

If there is disagreement on one consequence, the judge cannot pronounce the divorce on the basis of mutual consent.

Spouses will still be able to divorce on grounds of irretrievable disruption of the marriage. In that case, partial agreements are possible.