Author: Cazimir International
Date of publication: 10/11/2017
Clients with an international profile often ask us if we can commence divorce proceedings for them. This question can be aptly answered by the specialists in our firm. Usually, it concerns Belgian citizens living and/or working abroad or nationals from other countries working and/or residing in Belgium.
In addition, we often receive inquiries with regard to the distribution of foreign real estate, foreign capital structures or shares of foreign companies, while one has been divorced for many years. Notably, we note that consultants addressed keep these goods deliberately out of distribution because they do not have any experience with the law applicable to the distribution of these goods and the complexity and level of difficulty thereof. However, settlements on part of the matrimonial property can cause serious problems if these foreign assets were not considered. Thus, any claims made by a spouse regarding these goods can simply be forgotten.
In our firm, divorce proceedings and all related dispute resolution matters are handled by attorneys Mrs. Nathalie Labeeuw and Mrs. Sofie Longerstay. For the purpose of saving time and costs, and subject to the circumstances in each case, they generally encourage their clients to reach an amicable settlement with their spouses on the divorce, child custody, maintenance agreements, distribution of domestic and foreign properties etc. Nevertheless, a judicial may sometimes be inevitable.
Below, we briefly explain once more the most important rules regarding jurisdiction and applicable law on divorce with an international element. However, if you would like to obtain specific advice, please do not hesitate to contact us.
When can a divorce procedure (and all related disputes) be brought before the Belgian courts?
The answer to this question is reflected in Article 3 of the Brussels II bis Regulation. The Belgian judges are competent in the following cases:
- if it is a common request and one of the spouses has his or her usual residence in Belgium;
- if the spouses have their usual residence in Belgium (it is not required that they have their usual residence in the same dwelling);
- if the last usual residence of spouses was in Belgium and one of them still resides there;
- if the defendant has his or her usual residence;
- if the petitioner has had his or her usual residence in Belgium for at least one year;
- if the petitioner has had his or her usual residence for at least six months in Belgium and, moreover, is a Belgian citizen or;
- if both spouses are Belgian citizens.
Failure to comply with these conditions may result in referring to the Belgian Code on International Private Law in a very limited number of cases (for example, if none of the courts competent under Brussels II bis Regulation is familiar with marriage between persons of the same sex).
What law will be applied to your situation?
The law applicable to the divorce petition, of course, determines the admissibility of the petition, the grounds and the conditions for divorce and the obligation to conclude an agreement in case of divorce.
For petitions brought by after 21 June 2012, the Rome III Regulation shall determine the applicable law. This Regulation does not apply in all Member States of the E.U. But that does not mean that it has no universal effect. Even though the law of a non-participating Member State is designated, this law will still have to be applied.
According to Article 5 of the Rome III Regulation, spouses may subject their divorce petition to one of the following legal systems:
- the law of their usual residence at the time of choice;
- the law of their last usual residence if any of them still resides there at the time of choice;
- the law of the nationality of one of the spouses at the time of choice, or;
- the law of the forum (lex fori).
However, this choice of law must be made no later than the date on which the dispute is submitted. It is therefore important to involve your counsellors in the dossier from the very beginning.
If no (valid) choice has been made, one will refer to on Article 8 of the Rome III Regulation which provides for a reference ladder:
- the law of the usual residence of the spouses;
- If they no longer have their usual residence in the same country at the time of the initiation of divorce, then the law of the last usual residence will apply if they both still had been living there less than a year ago and if one of them is still residing there;
- If this is not the case, the law of common nationality applies;
- If they do not have a common nationality, the competent court may apply its own law (lex fori).
In most cases, reference is made to the usual place of residence. It is therefore essential that one understands what is meant below.
What about the settlement-allocation of your matrimonial property regime?
Divorce is accompanied by the settlement-distribution of the matrimonial property. This is usually a special procedure in which lawyers Nathalie Labeeuw and Sofie Longerstay have built up a far-reaching specialization, also in international dossiers.
Among the property consequences of marriage are for instance the admissibility and validity of a marriage contract, the choice of the marriage regime, its size and modification, the composition of the matrimonial property and, finally, the dissolution and settlement-distribution of this matrimonial property. We often notice that our clients with an international profile do not distinguish between the rules for divorce per se and the issues related to their matrimonial property regime.
In that regard, we see many changes coming at European level. In this respect, we refer to an earlier article on our website. Http://www.cazimir.be/juridisch-nieuws/item/europa…
Regarding issues on matrimonial assets it is important to examine when the parties were exactly married. The referral rules differ according to whether they were married before or after 1 October 2004.
If one was married before October 1, 2004, the old referral rules will apply (former Article 3 Civil Code). The old jurisprudence referral rules relate primarily to the place of spouses’ common nationality at the time of marriage. In the absence of a common nationality, matrimonial property is governed by the law of the first stable place of residence. It must also always be checked whether the principle of referral is effective. If referral takes effect, the matrimonial property regime is changed next to the applicable law on matrimonial property. Attention must always be paid to possible amending acts and legal choices (whether or not prior to the entry into force of the IPR Code).
If one was married on October 1, 2004 or later, referral will be made to the Belgian Code on Private International Law, and in particular to Article 42.
The Belgian courts are competent if:
- it concerns a joint petition and if the usual residence of one of the spouses is in Belgium;
- the last common usual residence of the spouses is in Belgium;
- the petitioner has had his or her usual residence in Belgium for more than a year, or;
- both spouses are Belgian citizens.
Regarding the law applicable to the property consequences of marriage, it is important to refer again to the possibility of a choice of law.
According to Article 49 of the Belgian Code on International Private Law, spouses can choose one of the following legal systems, provided that this choice refers to all of their assets:
- the law of their first usual residence of one of the spouses at the time of the choice;
- the law of the usual residence of one of the spouses at the time of choice;
- the law of the nationality of one of the spouses at the time of the choice.
If this choice has not been made at the commencement or during the marriage, one may refer to Article 51 of the Code of International Private Law:
- the law of the first common usual residence of the spouses after the conclusion of their marriage;
- if the spouses did not have a common usual residence, the law of their common nationality at the time of conclusion of the marriage;
- if they do not have a common nationality, the law of the place where the marriage was concluded.
It is noteworthy that the reference factor is thus determined at the time of the marriage.