Q: Do Belgian courts have jurisdiction over my divorce ? Which law will they apply?
A: Regarding jurisdiction, this question is ruled by a European Regulation (2201/2003) often called Brussels IIbis.
The central concept is the place of habitual residence.
The Belgian courts will indeed have jurisdiction in matters relating to divorce, legal separation or marriage annulment if :
- the spouses are habitually resident in Belgium, or
- the spouses were last habitually residents in Belgium, insofar as one of them still resides on the Belgian territory, or
- the respondent is habitually resident in Belgium, or
- in the event of a joint application, either of the spouses is habitually resident in Belgium, or
- the applicant is habitually resident if he or she resided in Belgium for at least a year immediately before the application was made, or
- the applicant is habitually resident in Belgium if he or she resided in Belgium for at least six months immediately before the application was made and is Belgian citizen,
- both spouses are Belgian;
These rules are the same in every EU member state, except Denmark which has not adopted this Regulation. For countries outside of the EU, the rules differ and are too numerous to be examined here.
The next question is obviously to determine when one can be considered as “habitually resident” in Belgium.This is a factual concept that covers more than the mere registration on the population register – which is, nevertheless, an indication.
In fact, one will have to prove that he/she is actually resident in Belgium and that this residence is made to last. Therefore, one can be considered as “habitually resident” even after a very short stay in Belgium (even a couple of weeks) as long as one’s intention is to settle in Belgium for a certain period of time.
Regarding the applicable law: Once the jurisdiction of Belgian courts has been confirmed, the question of the applicable law has to be solved.
No international regulation rules the question of the applicable law. It is thus a Belgian law, the Code of International Private Law we have to refer to.
According to the Code of International Private Law, divorce is ruled by various criteria which are almost but not exactly the same as for the question of the jurisdiction:
- the law of the State on which both spouses are habitually resident at the moment the application is made;
- for lack of habitual residence in the same State, the law of the State on which they were last habitually resident at the moment the application is made, if one of the spouses is still habitually resident in this State;
- for lack of one of the spouses being habitually resident in this State, the law of their common nationality;
- in all other cases, Belgian law.
However, spouses can choose one of the following laws: that of their common nationality at the moment the application is made or Belgian law.
We must underline that, contrary to common belief, the law of the nationality of both spouses is not applicable automatically to their divorce, unless they both agree thereto.
The applicable law can differ in each country. It is therefore important to check, beforehand, which country can have jurisdiction to deal with the divorce, and which law shall be applicable in this country. This can have important consequences, in particular on alimony. We will examine this question in an upcoming column.
Arnaud Gillard is an attorney at Dal & Veldekens and is a member of the Brussels bar.
The contents of this column are not intended to serve as legal advice related to any individual situation. This material is made available for informational purposes only.
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