An Act To Amend The Civil Code, The Act Of 31 December 1851 On The Consulates And Consular Jurisdiction, The Penal Code, The Judicial Code And The Act Of 15 December 1980 On Access To The Territory, Residence, Establishment And Removal Of Foreigners, E

Original Language Title: Loi modifiant le Code civil, la loi du 31 décembre 1851 sur les consulats et la juridiction consulaire, le Code pénal, le Code judiciaire et la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers, e

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2 JUIN 2013. - An Act to amend the Civil Code, the Act of 31 December 1851 on consulates and consular jurisdiction, the Criminal Code, the Judicial Code and the Act of 15 December 1980 on access to territory, residence, establishment and removal of foreigners, with a view to combating marriages of convenience and legal cohabitation of convenience (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1. - General provision
Article 1. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Civil Code
Art. 2. In section 63 of the Civil Code, restored by the law of 4 May 1999 and amended by the Act of 10 March 2010, the following amendments are made:
1° in § 2, paragraph 2 is replaced by the following:
"The Civil Registry Officer shall record this statement in the month of the issuance of the acknowledgement of receipt referred to in Article 64, § 1st, paragraph 1st, unless he has doubts as to the validity or authenticity of the documents referred to in Article 64. In such a case, he shall inform the future spouses and shall decide on the validity or authenticity of the documents submitted and decide whether the act may be established, no later than three months after the issuance of the acknowledgement of receipt referred to in Article 64, § 1st, paragraph 1st. If he has not made a decision within that time limit, the Registrar must establish the act without delay. »;
2° in § 4, paragraph 1, the words "or if it does not recognize the validity or authenticity of these documents" are inserted between the words "subject to Article 64" and the words ", the officer of the civil status".
Art. 3. The opening sentence of Article 64, § 1, of the same Code, restored by the Law of 4 May 1999 and amended by the Laws of 16 July 2004 and 3 December 2005, is supplemented by the words "against acknowledgement of receipt issued after receipt of all documents".
Art. 4. In section 146ter of the same Code, inserted by the Act of 25 April 2007, the words "of both spouses and consent" are replaced by the words "of both spouses or consent".
Art. 5. In section 167 of the same Code, restored by the Act of 4 May 1999 and amended by the Act of 1 March 2000, the following amendments are made:
1° paragraph 2 is supplemented by the following:
"The King's Attorney may extend this period of up to three months. In this case, the officer shall inform the officer of the civil status which shall inform the parties concerned. »;
2° in paragraph 3, the words "without delay" are inserted between the words "marriage" and the words ", even in";
3rd paragraph 4 is supplemented by the words "and to the Aliens Office in case its decision is based on section 146 bis".
Art. 6. Section 184 of the same Code, last amended by the Act of 25 April 2007, is supplemented by a paragraph written as follows:
"The King's Attorney continues to nullify any marriage contracted in violation of articles 146bis or 146ter. "
Art. 7. In the same Code, an article 193ter is inserted as follows:
"Art. 193ter. Any exploit of the meaning of a judgment or judgment that revokes a marriage shall be immediately communicated in a copy by the judicial officer of the Public Prosecutor's Office and the Registrar of the Jurisdiction who made the decision.
When the nullity of the marriage has been pronounced by a judgment or a judgment cast in force of a thing judged, an extract resuming the device of the judgment or of the judgment and the mention of the day when it has acquired force of thing judged, shall be sent, without delay, by the clerk to the civil status officer of the place where the marriage was celebrated or, when the marriage was not celebrated in Belgium, to the civil status officer. When it comes to the cancellation of a marriage contracted in contravention of the provisions of sections 146bis or 146ter, it sends the excerpt at the same time to the Aliens Office.
The Clerk warns the parties.
The Civil Registry Officer shall promptly transcribe the device on his records; mention is made on the margins of the marriage certificate and civil status acts relating to children, if they have been drawn up or transcribed in Belgium. "
Art. 8. In the same Code, an article 1476bis is inserted as follows:
"Art. 1476bis. There is no legal cohabitation where, although the will of the parties to cohabit legally has been expressed, there is a combination of circumstances that the intent of at least one of the parties clearly aims to obtain a residence benefit, linked to the status of legal cohabitant. "
Art. 9. In the same Code, an article 1476ter is inserted as follows:
"Art. 1476ter. There is no legal cohabitation either where the cohabitation is contracted without the free consent of the two legal cohabitants or that the consent of at least one of the legal cohabitants has been given under the violence or threat. "
Art. 10. In the same Code, an article 1476quater is inserted as follows:
"Art. 1476quater. The civil status officer refuses to act the declaration of legal cohabitation when he finds that the declaration refers to a situation as referred to in 1476 bis and 1476ter.
If there is a serious presumption that the declaration refers to a situation as referred to in articles 1476bis and 1476ter, the Civil Registry Officer may defer to act the declaration of legal cohabitation, possibly after having collected the opinion of the King's Prosecutor of the Judiciary in which the parties intend to return the declaration of legal cohabitation, for a period of not more than two months to issue. The King's Prosecutor may extend this period of up to three months. In this case, the officer shall inform the officer of the civil status which shall inform the parties concerned.
If the officer has not made a final decision within the time limit set out in paragraph 2, the civil status officer shall act without delay the declaration of legal cohabitation in the register of the population.
In the case of a refusal referred to in paragraph 1st, the Civil Status Officer shall promptly notify the parties concerned of the decision. A copy of the latter, together with a copy of all relevant documents, is, at the same time, transmitted to the Crown Prosecutor of the Judicial Borough in which the decision of refusal was made and to the Aliens Office.
The refusal of the civil status officer to act the legal cohabitation declaration is subject to appeal by the parties concerned to the court of first instance within one month of notification of the decision. "
Art. 11. In the same Code, an article 1476quinquies read as follows:
"Art. 1476quinquies. §1. In the hypotheses referred to in articles 1476bis and 1476ter, a nullity action may be introduced by the legal cohabitants themselves and by all those who have interest in it.
The King's attorney continues to nullify such a legal cohabitation.
Any use of the meaning of a judgment or judgment that revokes a legal cohabitation shall be immediately communicated by a copy of the judicial officer to the clerk of the court who pronounced the decision.
When the invalidity of the legal cohabitation has been pronounced by a judgment or a judgment cast in force of a judgment, an extract resuming the device of the judgment or judgment and the mention of the day on which the judgment has acquired force of a judgment shall, without delay, be sent by the clerk to the civil status officer of the commune of the two parties' domicile or, where the parties are not domiciled in the same commune, to the
The Clerk warns the parties.
The Civil Registry Officer shall promptly cancel the legal cohabitation in the register of the population.
§ 2. The legal cohabitation within the meaning of articles 1476bis and 1476ter, which was declared null, nevertheless produces its effects in favour of the party that contracted legal cohabitation in good faith.
It also produces its effects in favour of children, even if none of the parties were in good faith. "
CHAPTER 3. - Amendment of the Act of 31 December 1851 on consulates and consular jurisdiction
Art. 12. In the Act of 31 December 1851 on consulates and consular jurisdiction, an article 20/1 is inserted as follows:
"Art. 20/1. The head of a consulate may issue to Belgians who wish to enter into marriage within the jurisdiction of his consular district, at their request, a certificate of non-prevention of marriage from which it appears that no legal objection exists under Belgian law in respect of marriage, if the foreign authority requires the production of that certificate.
The certificate is issued only if it appears from the investigation that the applicant meets, according to Belgian law, the qualities and conditions required to enter into marriage.
Upon application of the certificate, the applicant domiciled abroad must elect domicile in Belgium for correspondence and notifications.
If it is not satisfied with the qualities and conditions required to be able to enter into marriage or in the event of serious doubts as to the satisfaction of the qualities and conditions required, the head of the consulate shall forward the application for a certificate to the competent King's prosecutor and inform the applicant of the request.
Within three months of the receipt of the application of the certificate, whose consulate acknowledges receipt at the time of the introduction of the application, the King's attorney may object to its issuance. It may extend the maximum of two months. He promptly informs interested parties, the consulate to which the attestation was requested, the Foreign Office and the civil status officer of the commune in Belgium where the applicant is domiciled, of his reasoned opposition.
The adjournment of the opposition may be requested in the month of the notice of the opposition to the Court of First Instance of the Crown Prosecutor's jurisdiction which opposed the issue of the certificate. The judge shall rule at short notice.
In the event of a failure by the King's Prosecutor within the period referred to in paragraph 5, the head of the consulate shall issue the certificate without delay. "
CHAPTER 4. - Amendments to the Criminal Code
Art. 13. In Book II, Title VII, of the Criminal Code, the title of Chapter XI, inserted by the Act of 25 April 2007, is supplemented by the words "and forced legal cohabitation".
Art. 14. In section 391sexies of the same Code, inserted by the Act of 25 April 2007, the following amendments are made:
1° in paragraph 1st, the words "one month to two years or a fine of one hundred to five hundred euros" are replaced by the words "three months to five years and a fine of two hundred and fifty euros to five thousand euros";
2° in paragraph 2, the words "from fifteen days to one year or a fine of fifty to two hundred and fifty euros" are replaced by the words "from two months to three years and a fine of one hundred and twenty-five euros to two thousand five hundred euros".
Art. 15. In Book II, Title VII, Chapter XI, of the same Code, an article 391ssepties is inserted as follows:
"Art. 391ssepties. Any person who, by violence or threats, has forced someone to contract a legal cohabitation will be punished by imprisonment for three months to five years and a fine of two hundred and fifty euros to five thousand euros.
The attempt is punishable by imprisonment from two months to three years and a fine of one hundred and twenty-five euros to two thousand five hundred euros. "
Art. 16. In Book II, Title VII, Chapter XI, of the same Code, an article 391octies is inserted as follows:
"Art. 391octies. §1. A judge who pronounces a sentence on the basis of articles 391sexies or 391ssepties or who finds guilt for an offence under these provisions may also pronounce the nullity of marriage or legal cohabitation at the request of the Crown Prosecutor or any party having an interest in the cause.
§ 2. A judgment is only enforceable to spouses or legal cohabitants if they have been or called to the cause.
The Public Prosecutor's Office may call for forced intervention on the spouse or spouse or legal cohabitant or legal cohabitant who are not parties to the cause.
The intervention gives them the quality of party to the cause. Such parties may exercise remedies.
The intervention is formed from the beginning of the proceeding so that the parties can assert their rights on the cancellation of marriage or legal cohabitation.
§ 3. Any exploit of the meaning of a judgment or judgment that revokes a marriage or a legal cohabitation shall be immediately communicated by a copy of the judicial officer to the clerk of the court who pronounced the decision.
§ 4. When the nullity of the marriage has been pronounced by a judgment or a judgment cast in force of a thing judged, an extract resuming the device of the judgment or judgment and the mention of the day on which it acquired force of thing judged is sent, without delay, by the clerk to the civil status officer of the place where the marriage was celebrated and to the Office of Aliens or, when the marriage was not celebrated in Belgium, to the civil status officer of the Brussels
The Clerk warns the parties.
The Civil Registry Officer shall promptly transcribe the device on his records; mention is made on the margins of the marriage certificate and civil status acts relating to children, if they have been drawn up or transcribed in Belgium.
§ 5. When the invalidity of the legal cohabitation has been pronounced by a judgment or a judgment cast in force of a judgment, an extract resuming the device of the judgment or of the judgment and the mention of the day on which the judgment has acquired force of evidence is sent, without delay, by the clerk to the civil status officer of the place where the declaration of legal cohabitation has been made and to the Office of Aliens.
The Clerk warns the parties.
The Civil Registry Officer shall promptly mention the cancellation of the legal cohabitation in the register of the population. "
CHAPTER 5. - Amendments to the Judicial Code
Art. 17. In section 569, paragraph 1, of the Judicial Code, last amended by the Act of 10 December 2012, the following amendments are made:
1° on 1°, is supplemented by the words "and without prejudice to the jurisdiction attributed to the criminal judge by article 391octies of the Criminal Code and by article 79quater of the law of 15 December 1980 on access to territory, residence, establishment and removal of aliens";
2° it is inserted a 1° /1 written as follows:
"1° bis of requests for the annulment of legal cohabitation, without prejudice to the jurisdiction assigned to the criminal judge by section 391octies of the Criminal Code and section 79quater of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens; "
Art. 18. In article 587, 9°, of the same Code, inserted by the law of 4 May 1999, the words "and 167, last paragraph" are replaced by the words " 167, paragraph 6, and 1476quater, paragraph 5".
CHAPTER 6. - Amendments to the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 19. In section 40ter of the Act of 15 December 1980 on Access to Territory, Residence, Establishment and Displacement of Aliens, inserted by the Act of 8 July 2011, a paragraph written as follows is inserted between paragraphs 2 and 3:
"When a certificate of non-prevention of marriage has been issued, a new investigation will not be conducted in connection with the examination of a family reunification application based on the marriage celebrated following the issuance of the certificate, unless new elements arise. "
Art. 20. In section 74/11, § 1 of the Act, inserted by the Act of 19 January 2012, paragraph 3 is replaced by the following:
"The maximum three-year period referred to in paragraph 2 shall be extended to a maximum of five years when:
1° the citizen of a third country resorted to fraud or other illegal means in order to be allowed to stay or to maintain his right to stay;
2° the citizen of a third country has entered into a marriage, partnership or adoption only in order to be allowed to stay or to maintain his right to stay in the Kingdom. "
Art. 21. In section 79bis of the Act, inserted by the Act of 12 January 2006, the following amendments are made:
1° in § 1st, paragraph 1st, the words "from eight days to three months or a fine of twenty-six to one hundred euros" are replaced by the words "from one month to three years and a fine of fifty euros to five hundred euros";
2° in § 1st, paragraph 2, the words "from fifteen days to one year or a fine of fifty to two hundred and fifty EUR" are replaced by the words "from two months to four years and a fine of one hundred euros to two thousand five hundred euros";
3° in § 1st, paragraph 3, the words "one month to two years or a fine of one hundred to five hundred EUR" are replaced by the words "three months to five years and a fine of two hundred and fifty euros to five thousand euros";
4° in § 2, paragraph 1, the words "of a fine of twenty-six to fifty EUR" are replaced by the words "of imprisonment of fifteen days to one year and a fine of twenty-six euros to two hundred and fifty euros";
5° in § 2, paragraph 2, the words "from eight days to six months or a fine of twenty-six to one hundred and twenty-five EUR" are replaced by the words "from one month to two years and a fine of fifty euros to one thousand two hundred and fifty euros";
6° in § 2, paragraph 3, the words "from fifteen days to one year or a fine of fifty to two hundred and fifty EUR" are replaced by the words "from two months to three years and a fine of one hundred and twenty-five euros to two thousand five hundred euros".
Art. 22. In the same Act, an article 79ter is inserted as follows:
"Art. 79ter. §1. Anyone who concludes a legal cohabitation in the circumstances referred to in Article 1476bis of the Civil Code shall be liable to imprisonment for one month to three years and to a fine of 50 euros to five hundred euros.
Anyone who receives a sum of money to pay him for the conclusion of such a cohabitation will be punished by imprisonment from two months to four years and a fine of one hundred euros to two thousand five hundred euros.
Anyone who resorts to violence or threats against a person to compel him to enter into such a cohabitation shall be punished by imprisonment from three months to five years and a fine of two hundred and fifty euros to five thousand euros.
§ 2. The attempt of the offence referred to in § 1st, paragraph 1st, is punishable by imprisonment from fifteen days to one year and a fine of twenty-six euros to two hundred and fifty euros.
The attempt of the offence referred to in § 1st, paragraph 2, is punishable by imprisonment from one month to two years and a fine of fifty euros to one thousand two hundred and fifty euros.
The attempt of the offence referred to in § 1st, paragraph 3, is punishable by imprisonment from two months to three years and a fine of one hundred and twenty-five euros to two thousand five hundred euros. "
Art. 23. In the same Act, an article 79quater is inserted as follows:
"Art. 79quater. §1. A judge who pronounces a sentence on the basis of articles 79bis or 79ter or who finds guilt for an offence under these provisions may also pronounce the nullity of marriage or legal cohabitation at the request of the Crown Prosecutor or of any party having an interest in the case.
§ 2. No judgment is enforceable to spouses or legal cohabitants if they have not been present or called to the cause.
The Public Prosecutor's Office may call for forced intervention the spouse or legal cohabitant who is not present at the cause.
The intervention gives them the quality of party to the cause. Such parties may exercise remedies.
The intervention is formed from the beginning of the proceeding so that these parties can assert their rights to the annulment of marriage or legal cohabitation.
§ 3. Any exploit of the meaning of a judgment or judgment relating to the annulment of a marriage or legal cohabitation shall be immediately communicated by the judicial officer instrumenting the clerk of the court who pronounced the decision.
§ 4. When the nullity of the marriage was pronounced by a judgment or a judgment cast in force of a judgment, an extract resuming the device of the judgment or judgment and the mention of the day on which the judgment acquired force of the thing judged is, without delay, sent by the clerk to the civil status officer of the place where the marriage was celebrated and to the Office of Aliens or, when the marriage was not celebrated in Belgium, to the civil status officer of the Brussels
The Clerk warns the parties.
The Civil Registry Officer promptly transcribes the device on his records; mention is made on the margins of the marriage certificate and civil status acts relating to children, if they have been drawn up or transcribed in Belgium.
§ 5. When the invalidity of the legal cohabitation has been pronounced by a judgment or a judgment cast in force of a judgment, an excerpt resuming the device of the judgment or judgment and the mention of the day on which it has acquired force of evidence is, without delay, sent by the clerk to the civil status officer of the place where the declaration of legal cohabitation has been made and to the Office of Aliens.
The Clerk warns the parties.
The Civil Registry Officer shall promptly cancel the legal cohabitation in the register of the population. "
CHAPTER 7. - Transitional provision
Art. 24. Sections 63, 64 and 167 of the Civil Code remain applicable to statements made by future spouses before this Act comes into force.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 2 June 2013.
ALBERT
By the King:
The Minister of Justice,
Ms. A. TURTELBOOM
Seen and sealed the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2012-2013.
House of Representatives.
Documents. - Bill, 53-2673 - No. 1. - Amendments - nbones 2-5. - Reports - nbones 6-8. - Text adopted by the commissions - No. 9. - Amendments - No. 10. - Text adopted in plenary and transmitted to the Senate - No. 11.
See also:
Full report. - 25 April 2013.
Senate.
Documents. - Project not referred to by the Senate, 5-2053 - No. 1.