The two ways to divorce in Belgium

Belgian law knows two forms of divorce: divorce by mutual consent (echtscheiding door onderlinge toestemming, EOT / divorce par consentement mutuel, DCM) and divorce for irretrievable breakdown of the marriage (onherstelbare ontwrichting / désunion irrémédiable). Fault is no longer a ground. The real difference between the two routes is how much you and your spouse already agree on.

Divorce by mutual consent

This route is open when both spouses want to divorce and agree in advance on all its consequences. Since the 2007 reform there is no minimum age and no minimum length of marriage.

The agreement has two parts. The first settles property: who keeps the home, how savings, debts and other assets are divided. If the spouses wish, a notary can first draw up an inventory of what they own together. The second is the family agreement, which covers:

• parental authority over the children and their residence and contact arrangements, during the procedure and after;
• each parent's contribution to the children's upkeep, education and training;
• any maintenance one spouse will pay the other, or the fact that both waive it.

The agreement is filed with the family court by petition. Since 1 September 2018 the procedure is in principle entirely written: the spouses no longer have to appear in person, although the judge can still call them in, and so can either spouse or the public prosecutor. The court checks the agreement, in particular that the arrangements for the children are in their interest, and pronounces the divorce.

The will to divorce must hold until the end. If one spouse changes their mind, this route closes.

Divorce for irretrievable breakdown

This is the route when there is no full agreement, or when one spouse wants to divorce and the other does not. The marriage is irretrievably broken down when continuing life together has become impossible. That can be shown in two ways.

By proof. Any lawful evidence can be used — letters, emails, photos, witnesses, an expert report. There is no waiting period, but the breakdown has to be demonstrated.

By a period of actual separation. The law presumes the breakdown once the spouses have lived apart for long enough:

• on a joint request, more than six months of actual separation;
• on a request by one spouse, more than one year of actual separation.

If the separation is shorter when the request is filed, the case can still go ahead: the spouse or spouses repeat their wish to divorce at a second hearing after a reflection period, and the divorce is then granted on that basis.

The competent family court is that of the last marital residence or of the defendant's residence. The divorce itself is often the simple part. The arrangements for the children, maintenance and the division of property can be dealt with in the same court but are frequently the longer discussion.

The family court

Almost every family matter in Belgium goes to the family court, a section of the court of first instance. Because divorce, residence of the children and maintenance all go to the same court, the same family usually deals with the same court throughout, including on later changes to the arrangements.

Mediation and the amicable settlement chamber

Each family court has a chamber for amicable settlement (kamer voor minnelijke schikking / chambre de règlement à l'amiable), where a judge helps the parties look for an agreement. What is said there is confidential. The chamber can also refer the parties to an accredited family mediator.

Mediation is voluntary and can start before or during proceedings. A mediator cannot impose anything, but an agreement reached in mediation can be approved by the court. Spouses who start a contested procedure and later come to agree can usually still switch to the mutual consent route.

Before you choose a route

Write down what you already agree on and what you do not. That list largely decides the route, the time it takes and the cost. The FOD Justitie / SPF Justice page on divorce sets out the conditions of both forms.

This page is general information about how these matters usually work in Belgium. It is not legal advice about your own case, and only a lawyer who has read your documents can give you that.