How does a divorce with international aspects work?
What about a foreign marriage in Belgium? What about a marriage between partners of different nationalities? What about a partner's move abroad during the marriage? Below you will find out where to conduct the divorce proceedings in Belgium, which law applies and how the divorce is recognized abroad, or conversely, how a foreign divorce is recognized in Belgium.
1. IN WHAT CASES CAN A DIVORCE BE RECOGNIZED IN BELGIUM?
In international divorces, the nationality and place of the marriage are of secondary importance. What matters most is habitual residence. Usual residence is defined as the place where a natural person has his or her main residence, regardless of registration and residence permit (art. 4, § 2 WbIPR). `
When is the Belgian court competent?
When in Belgium:
the spouses have their habitual residence
the last habitual residence of the spouses is located, if one of them still resides there
the respondent has his habitual residence
in case of a joint request, the habitual residence of one of the spouses is located
the habitual residence of the petitioner is located, if he has been residing there for at least one year immediately preceding the filing of the request
or when both spouses possess the Belgian nationality
When the legal separation has been pronounced in Belgium, the Belgian judge is also competent to pronounce the actual divorce in Belgium (art. 5 Brussels II-ter Regulation).
If none of the above possibilities apply, then the divorce cannot be executed before a Belgian court. The action for international divorce will have to be filed with a court in another country, usually, the European country that meets one of the conditions.
If the divorce can be initiated in Belgium, the family court of the last place of marital residence of the parties or the domicile of the defendant has jurisdiction (art. 628 of the Judicial Code).
More info on international jurisdiction in divorce cases can be found here.
2. IF THE BELGIAN COURT HAS JURISDICTION, WHICH LAW SHOULD BE USED?
First of all, spouses can conclude an agreement of choice, in which they can choose from the following laws for the divorce application. This written agreement between the parties can be concluded at any time, but at the latest before the divorce is brought before the court (art. 5 Rome III Regulation).
If Belgian law applies, one may opt for either a divorce by mutual consent or divorce for irretrievable disruption.
The choice of the legal system:
the law of the country where the spouses had their habitual residence
the law of the country of the last common habitual residence provided one of them still has his habitual residence there
the law of the country of nationality of at least one of the spouses
the law of the country in which the proceeding is to be instituted
Another possibility is that the legal system applied to legal separation is also applied to divorce (Art. 9 Rome III Regulation).
If both spouses have not agreed as to the applicable legal system, the Rome III Regulation itself determines which legal system should be followed (Article 8 Rome III Regulation). The following laws are applicable in stages, i.e. if option 1 does not apply, option 2 applies, and so on.
1. the law of the country in which the spouses were habitually resident at the time the court was seized (either jointly or separately)
2. the law of the country of last common habitual residence if it has not ceased to exist at least one year before the court is seized AND one of the spouses still habitually resides there
3. the law of the country of which you were both nationals at the time the court was seized 4. in all other cases, Belgian law is applied.
4. in all other cases, Belgian law is applied.
3. HOW IS A FOREIGN DIVORCE RECOGNIZED IN BELGIUM?
European divorce decree
If a divorce decree has been obtained in another EU country, the principle of automatic recognition without any procedure applies, except in Denmark (Art. 30 Brussels II-ter Regulation).
Exceptionally, a divorce decree from an EU Member State cannot be recognized in Belgium because of
conflict with Belgian public order
violation of the rights of the defense (e.g. failure to summon the defendant)
irreconcilability with an earlier judgment involving the same parties
Non-European divorce ruling
For divorce decrees pronounced by non-EU countries, judicial recognition is required. Afterward the divorce can be reported to the municipality or city. When is the recognition of a non-EU divorce decree refused (art. 25 WIPR):
conflict with public policy
violation of the rights of the defense
circumvention of the law
decision still subject to appeal
judgment incompatible with a Belgian judgment
the claim was filed abroad, after the claim had already been filed in Belgium and is still pending
the Belgian court has exclusive jurisdiction over the claim
the jurisdiction of the foreign court was exclusively based on the presence of the defendant or of property without a direct link to the dispute in the State to which the court belongs
conflict with a number of limitative grounds for refusal included in the IPR Code.
Read more on the site of the Foreign Affairs Department how recognition is practically regulated.
4. WHAT ABOUT THE MATRIMONIAL PROPERTY REGIME?
If the parties have not signed a marriage contract and have not made a choice as to the law applicable to the matrimonial property, it is customary to apply the law applicable to the divorce to the claims concerning the matrimonial property.
If Belgian law is applicable to the matrimonial property, read more here about the process of the liquidation distribution.
If a marriage contract was concluded abroad, the law applicable to the distribution is usually specified therein.
5. EXAMPLE
A woman with Turkish nationality is married in Turkey to a man with German nationality. The husband moved back to Germany 3 months earlier while the wife remains in Belgium. The woman wishes to divorce.
Which judge is competent to rule?
The claim can be brought before a Belgian court since one of the parties still has a habitual residence in Belgium (Art. 3 Brussels II-ter Regulation).
Which law will be applied?
The claimant himself still lives in Belgium, which is also the last common habitual residence. Therefore the Belgian judge can apply Belgian law (art. 8 Rome III Regulation).
Suppose the wife moves back to Turkey and wants to have the Belgian divorce decree recognized in Turkey?
In Europe the automatic recognition of divorces applies (art. 30 Brussels II-ter Regulation). As far as foreign divorce decrees are concerned, they will be subject to further checks and a procedure for recognition must be initiated in Turkey.
More on the subject of divorce with international aspects in the EU, can be found here.