Belgium Belgian Family Law Anno 2018

Summary

INTRODUCTION

Families and family realities are constantly evolving, and so does family law itself. Over the last decade Belgian family (property) law has been subject to many reforms. The legislator has made important changes in the field of parentage (2006), divorce and post-divorce maintenance (2007), child maintenance (2010), family and juvenile courts (2013), co-motherhood (2014), naming law (2014), foster care (2017) and inheritance law (2017). Through an analysis of the existing legal provisions and the relevant case law of the Belgian Constitutional Court and the Court of Cassation, this contribution aims to offer an overview of Belgian family law as of 2018. This contribution offers a view of the various aspects of Belgian family, such as marriage and divorce (section 2), cohabitation outside marriage (section 3), filiation (section 4), and parental responsibilities and child maintenance (section 5).

MARRIAGE AND DIVORCE

ENTERING THE MARRIAGE: BASIC AND FORMAL REQUIREMENTS

Marriage is the most formalised form of cohabitation in Belgium, with many basic and formal requirements. Marriage stands alongside the less formalised forms of partnership, namely legal cohabitation and de facto cohabitation, which are covered in section 3.

In Belgium, a marriage can be entered into by two adults (Article 144 Civil Code) of the opposite or same sex (Article 143, paragraph 1 Civil Code). Consent of both spouses is essential; absence of consent leads to the annulment of the marriage (Article 146 Civil Code). Another basic requirement to marry is that a second marriage cannot be entered into before dissolution of the first marriage (Article 147 Civil Code). Finally, the spouses may not be related within the prohibited degrees of kinship, the so-called ‘impediments to marriage ‘(Articles 161 – 163 Civil Code and Article 353-13, 1 ° –5 ° Civil Code).

Alongside the aforementioned basic requirements to marry, there exist some formal requirements. A person wishing to enter into a marriage must first make a declaration to the Registrar (Article 63, section 1, paragraph 1 Civil Code), which will be followed by a waiting period of 14 days (Article 165, section 1 Civil Code) during which the Registrar checks whether the basic requirements to marry are met and verifies, among other things, the (non-)existence of a marriage of convenience or so-called'sham marriage ‘. Moreover, the marriage itself must be concluded in public (Article 166 Civil Code).