27 AVRIL 2007. - Divorce Reform Act (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER. - Amendments to the Civil Code
Art. 2. Section 229 of the Civil Code, replaced by the Act of 28 October 1974, is replaced by the following provision:
"Art. 229. § 1^er. Divorce is pronounced when the judge finds the irremediable disunion between the spouses. Disunion is irremediable when it makes it reasonably impossible for the pursuit of common life and its recovery between them. Proof of irremediable disunity can be reported by any means of law.
§ 2. Unremediable disunion is established when the application is jointly formed by the two spouses after more than six months of de facto separation or is repeated twice in accordance with Article 1255, § 1^erThe Judicial Code.
§ 3. It is also established when the application is formed by a single spouse after more than one year of de facto separation or is repeated twice in accordance with Article 1255, § 2, of the Judicial Code. »
Art. 3. Section 230 of the Code, repealed by the Act of 28 October 1974, is reinstated in the following wording:
"Art. 230. The spouses may also divorce by mutual consent, subject to the conditions set out in Part IV, Book IV, Chapter XI, Section 2, of the Judicial Code. »
Art. 4. The Code repeals:
1° Article 231;
2° Article 232, restored by the law of 1^er July 1974 and amended by the laws of 2 December 1982 and 16 April 2000;
3° Article 233;
4th section 275, replaced by the law of 20 November 1969 and amended by the laws of 19 January 1990 and 20 May 1997;
5° Article 276, replaced by the Act of 20 May 1997.
Art. 5. Section 299 of the same Code is replaced by the following provision:
"Art. 299. Unless otherwise agreed, the spouses lose all the benefits they have made by marriage contract and since they have contracted marriage. "
Art. 6. Section 300 of the same Code, replaced by the Act of 14 July 1976, is repealed.
Art. 7. Section 301 of the Code, replaced by the Act of 9 July 1975 and amended by the Act of 20 May 1997, is replaced by the following provision:
"Art. 301. § 1^er. Without prejudice to section 1257 of the Judiciary Code, spouses may agree at any time of the possible maintenance, the amount of the pension and the manner in which the amount agreed may be revised.
§ 2. Failure of the agreement referred to in § 1^er, the court may, in the judgment pronouncing divorce or in a subsequent decision, grant, at the request of the spouse in need, a dependent maintenance of the other spouse.
The court may refuse to apply for a pension if the defendant proves that the plaintiff committed a serious fault that made it impossible to pursue the common life.
In no case is the maintenance granted to the spouse convicted of an act referred to in sections 375, 398 to 400, 402, 403 or 405 of the Criminal Code, committed against the defendant's person, or an attempt to commit an act referred to in sections 375, 393, 394 or 397 of the same Code against the same person.
By derogation from section 4 of the preliminary title of the Code of Criminal Procedure, the judge may, pending a decision on public action to be brought to trial, allocate an allowance to the applicant, taking into account all circumstances of the case. It may subordinate the granting of this instalment pension to the constitution of a guarantee that it determines and whose terms it sets.
§ 3. The court determines the amount of the maintenance that must cover at least the recipient's state of need.
It takes into account the income and opportunities of spouses and the significant deterioration of the economic situation of the beneficiary. To assess this degradation, the judge relies, inter alia, on the duration of marriage, the age of the parties, their behaviour during marriage as to the organization of their needs, the burden of children during or after the common life. The judge may decide whether the pension will be degressive and determine the extent to which it will be.
Alimony cannot exceed one third of the income of the debtor spouse.
§ 4. The duration of the pension cannot exceed that of marriage.
In exceptional circumstances, if the recipient demonstrates that, upon expiry of the period referred to in paragraph 1^er, for reasons beyond its control, the court may extend the time limit in a state of need. In this case, the amount of the pension is the amount necessary to cover the recipient's need status.
§ 5. If the defendant proves that the claimant's state of need is the result of a decision taken unilaterally by the claimant, and without the family's needs warranted this choice, it may be waived to pay the pension or be required only to pay a reduced pension.
§ 6. The pension court finds that the pension is fully adapted to fluctuations in the consumer price index.
The basic amount of the pension corresponds to the consumer price index of the month in which the judgment or judgment pronouncing the divorce is cast in force of a judgment, unless the court decides otherwise. Every twelve months, the amount of the pension is adjusted according to the increase or decrease in the consumer price index of the corresponding month.
These changes are applied to the pension as soon as the due date follows the publication to the Belgian Monitor of the new index to be considered.
The court may, in some cases, apply another pension adjustment system at the cost of life.
§ 7. Even in cases of divorce by mutual consent, and except in such cases where the parties have expressly agreed to the contrary, the court may increase, reduce or abolish the pension in the judgment pronouncing divorce or by a subsequent decision if, as a result of new and independent circumstances of the will of the parties, its amount is no longer appropriate.
Similarly, if, as a result of the dissolution of the marriage, the liquidation-sharing of the common patrimony or the indivision that existed between the spouses results in a change in their financial situation that justifies an adaptation of the maintenance that had been the subject of a judgment or agreement reached prior to the establishment of the liquidation accounts, the court may adjust the pension, except in case of divorce by mutual consent.
§ 8. The pension may at any time be replaced, from the agreement of the parties, by a capital approved by the court. At the request of the pension debtor, the court may also grant capitalization at any time.
§ 9. Spousals may not waive the rights to maintenance prior to the dissolution of marriage.
They may, however, transfer, in the course of proceedings, on the amount of the pension, to the conditions set out in article 1257 of the Judicial Code.
§ 10. The pension is no longer due to the death of the debtor, but the beneficiary may request dependant food from the estate under the conditions set out in section 205bis, §§ 2, 3, 4 and 5.
The pension shall, in any event, be permanently terminated in the event of a remarry of the pension beneficiary or at the time that the pensioner makes a legal cohabitation declaration, unless otherwise agreed by the parties.
The judge may terminate the pension when the beneficiary is married to another person.
§ 11. The court may decide that, in the event of failure by the debtor to fulfil its obligation to pay, the pensioner shall be authorized to collect the income of the pensioner or those of the property that he or she administers under their matrimonial regime, as well as any other amounts due to him or her by third parties.
This decision is enforceable against any third party debtor, current or future, on the notification made to them by the Registrar at the request of the applicant.
§ 12. The court ruling in respect of maintenance may order the provisional execution of the decision on its own motion. »
Art. 8. Section 301bis of the same Code, inserted by the Act of 9 July 1975 and amended by the Act of 20 May 1997, is repealed.
Art. 9. In Article 302 of the same Code, replaced by the Act of 13 April 1995, the words "the agreement of the parties duly endorsed in accordance with Article 1258" are replaced by the words "the agreement of the parties approved in accordance with Article 1256".
Art. 10. In article 304 of the same Code, the word "admis" is replaced by the word "pronounced".
Art. 11. The Code repeals:
1° Article 306, restored by the law of 1^er July 1974;
2° Article 307, restored by the law of 1^er July 1974 and amended by the Act of 14 July 1976;
3° Article 307bis, inserted by the law of 1^er July 1974.
Art. 12. Section 308 of the Code, repealed by the Act of 15 December 1949, restored by the Act of 27 January 1960 and amended by the Act of 27 June 1960, is replaced by the following provision:
"Art. 308. The duty of relief remains after the pronouncement of separation. "
Art. 13. Section 311bis of the same Code, replaced by the Act of 8 April 1965 and amended by the Acts of 14 July 1976 and 20 May 1997, is replaced by the following provision:
"Art. 311bis. Sections 229, 299, 302 and 304 of the same Code apply to body separation. "
Art. 14. In article 316bis of the same Code, inserted by the law of 1^er July 2006, the words "1258, § 2" are replaced by the word "1256".
Art. 15. In section 1428 of the same Code, replaced by the law of 14 July 1976 and amended by the law of 29 April 2001, the words "companies sections 229, 231 and 232" are replaced by the words "companies section 229".
Art. 16. Article 1429, paragraph 1^er, of the same Code, replaced by the law of 14 July 1976, the words "recurring articles 229, 231 and 232" are replaced by the words "recurring section 229".
Art. 17. Section 1447, paragraph 2, of the same Code, replaced by the Act of 14 July 1976 and amended by the Act of 28 January 2003, is replaced by the following provision:
"It is entitled, except in exceptional circumstances, to the request made by the spouse who has been the victim of an act referred to in sections 375, 398 to 400, 402, 403 or 405 of the Penal Code or to an attempt to an act referred to in sections 375, 393, 394 or 397 of the same Code when the other spouse was convicted of that leader by a decision cast in force of a thing tried. "
Art. 18. Article 1459, paragraph 1^er, of the same Code, replaced by the law of 14 July 1976, the words "recurring articles 229, 231 and 232" are replaced by the words "recurring section 229".
CHAPTER IIl. - Amendments to the Judicial Code
Art. 19. In article 628, 1°, of the Judicial Code, the words "for a certain reason or an application for conversion of the separation of bodies to divorce" are replaced by the words "for irremediable disunion".
Art. 20. In article 1016bis, paragraph 1 of the same Code, inserted by the law of 20 May 1987, the words "as cause of divorce" are deleted.
Art. 21. In Book IV, Chapter XI, Part IV of the Code, the following amendments are made:
1° the title of the first section is replaced by the following title:
"Section 1 - Divorce for irremediable disunion";
2° Section IV is repealed.
Art. 22. Section 1254 of the Code, replaced by the Act of 30 June 1994 and amended by the Act of 20 May 1997, is replaced by the following provision:
"Art. 1254. § 1^er. Except where it is based on Article 229, § 1^erfrom the Civil Code, the application for irremediable disunion may be filed by a request under articles 1034bis and following.
In addition to the usual mentions, the introductory act contains, if any, the mention of the identity of unmarried and emancipated minor children who are common to the spouses, of the children adopted by them and of the children adopted by the other, of each child of each spouse whose filiation is established, as well as of each child they raise together.
The Introductory Act contains, where applicable, a detailed description of the facts as well as, to the extent possible, all requests relating to the effects of divorce, without prejudice to § 5.
It may also contain any requests for interim measures concerning the person, food and property of both parties and unmarried or emancipated minor children common to the spouses, adopted children and children of one adopted by the other. If the applicant wishes these applications to be immediately filed as a reference, the application shall be filed by exploit of judicial officer containing a summons to appear before the chair sitting on a referendum, as stated in section 1280, and before the court.
The applicant party attached to the introductory act of proceeding, for each of the spouses and for any children mentioned above:
1° proof of identity, nationality and registration in the register of the population, the register of foreigners or the waiting register;
2° the birth certificates of the aforementioned children;
3° a certified copy of the last marriage certificate and the last marriage contract;
4° proof of the current residence or, if any, proof of the habitual residence in Belgium for more than three months, if it differs from the residence mentioned in the National Register.
If the documents submitted have been prepared in a foreign language, the Registry may request a certified translation in accordance with them.
§ 2. The persons concerned are exempted from providing the various evidence of identity, nationality and registration in the registers of the population or foreigners mentioned in § 1^eras long as they are registered, on the date of the proceedings, in the National Register of Physical Persons created by the Act of 8 August 1983, which organizes a National Register of Physical Persons. The data in this register is believed to the contrary. In this case, the Clerk of the Court controls identity data through the National Register and submits an extract from it to the file.
They are also exempt from providing:
1° the birth certificates mentioned in § 1^erprovided that the children concerned were born in Belgium;
2° the marriage certificate, if the marriage was contracted in Belgium.
In both cases, the court registry itself requests a copy of the act to the depositary of the register. The same is true when the act was transcribed in Belgium and the transplant is familiar with the place of its transcription.
§ 3. The provisions of § 2 do not apply to a referee action. They do not apply more to persons registered in the waiting register.
§ 4. If the records of the Introductive Proceedings are incomplete, or if the Registry has not been able to collect certain information in a timely manner for the Introductory Hearing, the judge invites the most expeditious party to disclose the information required or to complete the record of the proceedings. Each party may also take the initiative to form the file.
§ 5. Until the closure of the proceedings, the parties or any of them may extend or modify the cause or subject matter of the application, introduce counterclaims or amples, by contradictory conclusions, or by conclusions communicated to the other spouse by owner of a bailiff or by registered letter to the position with acknowledgement of receipt. »
Art. 23. Section 1255 of the same Code, replaced by the Act of 30 June 1994, is replaced by the following provision:
"Art. 1255. § 1^er. If divorce is sought jointly on the basis of Article 229, § 2, of the Civil Code, the application is signed by each spouse, or by at least a lawyer or notary.
If it is established that the parties have been de facto separated for more than six months, the judge decides the divorce.
If the parties have not been de facto separated for more than six months, the judge fixes a new hearing. This shall take place at a later date immediately after the six-month period or three months after the first appearance of the parties. In this hearing, if the parties confirm their will, the judge shall pronounce the divorce.
Where a divorce is pronounced, the judge shall, where appropriate, approve agreements between parties.
§ 2. If the divorce is requested by one of the spouses under Article 229, § 3, of the Civil Code, the judge shall pronounce the divorce if he finds that the parties have been de facto separated for more than a year.
If the parties have not been de facto separated for more than a year, the judge shall establish a new hearing. This shall take place at a date immediately thereafter at the time of one year or one year after the first hearing. In this hearing, if one of the parties so requires, the judge shall pronounce the divorce.
§ 3. If the divorce is requested by one of the spouses and in the course of the proceedings, the other marks its agreement on the application, the divorce shall be pronounced by the time limit set out in § 1^er.
§ 4. The de facto separation of spouses can be established by all means of law, the acquaintance and the oath excepted, and in particular by the production of residence certificates demonstrating registrations to different addresses.
§ 5. If divorce is requested by one of the parties, pursuant to Article 229, § 1^er, the Civil Code, and that the irreparable nature of the disunion is established, the judge may pronounce the divorce without delay.
§ 6. Except in exceptional circumstances, the personal appearance of the parties is required in the event of a joint application based on Article 229, § 2, of the Civil Code and the personal appearance of the applicant party in the other cases.
In any event, the hearing is held in the board's chamber.
Without prejudice to section 1734, the judge tries to reconcile the parties. It gives them all useful information on the procedure and in particular on the interest of resorting to mediation as provided for in Part VII of this Code. The Committee may order the deferral of proceedings in order to allow the parties to collect any relevant information in this regard. The duration of the overseverance may not exceed one month.
§ 7. If one of the spouses is in a state of dementia or in a serious state of mental imbalance, he is represented as a defendant by his guardian, his provisional administrator, or, failing that, by an ad hoc administrator previously designated by the president of the court at the request of the applicant party. » .
Art. 24. Section 1256 of the Code, repealed by the Act of 30 June 1994, is reinstated in the following wording:
"Art. 1256. At any time, the parties may apply to the judge for their agreements on interim measures relating to the person, food and property of spouses or their children.
He may refuse to accept the agreement if it is clearly contrary to the interests of children.
In the absence of an agreement or in the event of a partial agreement, the case shall be referred, at the request of one of the parties, to the first useful hearing of the references, provided that it is not yet included in the role of the referees. Section 803 is applicable. »
Art. 25. Section 1257 of the Code, repealed by the Act of 30 June 1994, is reinstated in the following wording:
"Art. 1257. Without prejudice to article 302 of the Civil Code, agreements approved during divorce proceedings or measures ordered in return are provisional within the meaning of article 1039, paragraph 1^erThe Judicial Code.
However, the parties may, after the expiry of a period of three months following the approval of their agreement or the order of reference, apply for the approval of the measures by the substantive judge, this time on a final basis and including for the period after the divorce.
The partial agreements relating to the liquidation of the matrimonial regime entered into during the divorce proceedings shall be concluded under the suspensive conditions of the final pronouncement of the divorce and its entry into force during the liquidation-sharing procedure. »
Art. 26. Section 1258 of the Code, replaced by the Act of 30 June 1994 and amended by the Act of 20 May 1997, is replaced by the following provision:
"Art. 1258. Unless otherwise agreed, the costs are shared between the parties when the divorce is pronounced on the basis of Article 229, §§ 1^er and 2, Civil Code. However, when divorce is pronounced on the basis of Article 229, § 1^erthe judge may decide otherwise, taking into account all circumstances of the case.
They are charged to the applicant party when the divorce is pronounced on the basis of Article 229, § 3, of the Civil Code. »
Art. 27. The Code repeals:
1° Article 1259, reinstated by the law of 19 February 2001;
2° Article 1267;
3° Article 1268, replaced by the Act of 30 June 1994 and amended by the Act of 20 May 1997;
4° Article 1269, paragraph 2, replaced by the Act of 28 October 1974 and amended by the Act of 30 June 1994;
5° Article 1270bis, replaced by Act of 30 June 1994 and amended by Act of 16 April 2000.
Art. 28. Section 1274 of the same Code, as amended by the Act of 30 June 1994, is replaced by the following provision:
"Art. 1274. The deadline for filing a cassation against a divorce decision is one month. This delay and the appeal are suspensive. »
Art. 29. Article 1275, § 1^er, from the same Code, replaced by the law of 30 June 1994, the words "for a certain cause" are deleted.
Art. 30. In section 1282 of the same Code, replaced by the Act of 30 June 1994 and amended by the Act of 20 May 1997, the following amendments are made:
1° the words "the meaning of the quote" are replaced by the words "the introduction of the request";
2° the provision is supplemented by a paragraph 2, which reads as follows:
"In any event, the parties have the right to have an inventory in accordance with chapter II of Book IV. »
Art. 31. The Code repeals:
Articles 1284 to 1286;
2° Article 1286bis, inserted by the law of 1^er July 1974 and amended by the Act of 30 June 1994;
3° Article 1287, paragraph 4, amended by the laws of 1^er July 1972, 14 May 1981 and 30 June 1994.
Art. 32. In article 1288, paragraph 1^er, 2°, of the same Code, replaced by the law of 1^er July 1972 and amended by the laws of 30 June 1994 and 13 April 1995, the words "the children referred to in section 1254" are replaced by the words "non-married and non-emancipated minor children common to the two spouses, the children they adopted and the children of one of them whom the other adopted".
Art. 33. In article 1288bis of the same Code, the words "1254, § 2, paragraph 1^er"are replaced by the words "1254, § 1^erParagraph 2."
Art. 34. In the same Code, an article 1291bis is inserted:
"Art. 1291bis. If the spouses establish that they have been de facto separated for more than six months at the time of the application, they are exempted from the appearance provided for in section 1294.
In this case, the application of articles 1295 et seq. »
Art. 35. In article 1294, paragraph 1^er, of the same Code, replaced by the law of 30 June 1994, the words ", or represented by a lawyer or a notary" are inserted between the words "spouses appear together and in person" and the words "before the president of the court".
Art. 36. In the same Code, an article 1294bis is inserted as follows:
"Art. 1294bis. § 1^er. If one of the parties does not appear at the hearing provided for in section 1294, or informs in the course of proceedings that it does not wish to pursue the hearing, the most diligent party may request the application of section 1255. In this case, the one-year time limit for fixing the hearing under Article 1255, § 2, paragraph 2, shall take place on the date of the appearance referred to in Article 1289.
§ 2. If the proceedings are discontinued, the conventions provided for in Article 1287 shall bind the parties on an interim basis, until they are applied under Articles 1257 or 1280. If the conventions are not in the form of an enforceable title, the case shall, at the request of the most diligent party, be fixed at the hearing of the referees in accordance with section 1256. If one of the parties so requests, the President shall make an interim order in accordance with the conventions. »
Art. 37. Section 1305 of the same Code is replaced by the following provision:
"Art. 1305. The application for separation is treated and judged in the same forms as the application for divorce.
The divorce application can at any time be transformed into a body separation application.
Body separation may at any time be transformed into a divorce application. "
Art. 38. The Code repeals:
1st section 1306, replaced by the law of 30 June 1994 and amended by the laws of 27 December 1994 and 20 May 1997;
2° Article 1307, amended by the laws of 24 June 1970 and 20 May 1997;
Article 1309, amended by the laws of 15 May 1972, 3 August 1992, 27 December 1994 and 16 April 2000;
4° Article 1310, amended by the laws of 1^er July 1972, 27 December 1994 and 16 April 2000.
Art. 39. In section 1412, paragraph 1 of the same Code, the following amendments are made:
1° to 1°, the words "306, 307" and the words "or 1306" are deleted;
2° to 2°, the words "301bis" are replaced by the words "301, § 11".
CHAPTER IV. - Amendments to the Criminal Code
Art. 40. The following amendments are made to section 391bis of the Criminal Code:
1° in paragraph 2, the words "306, 307" and the words "and 1306 paragraph 3" are deleted;
2° in paragraphs 3 and 4, the words "and 1306 paragraph 1" are deleted;
3° in paragraphs 3 and 4, the words "301bis" are replaced by the words "301, § 11".
CHAPTER V. - Amendments to the Registration, Mortgage and Registry Code
Art. 41. In section 269 (1) of the Registration, Mortgage and Registry Code, paragraph 3 is repealed.
CHAPTER VI. - Transitional provisions
Art. 42. § 1^er. For the purposes of Article 229, §§ 2 and 3 of the Civil Code, the period of de facto separation prior to the entry into force of this Act shall be taken into consideration.
§ 2. The former sections 229, 231 and 232 of the same Code remain applicable to divorce or separation proceedings before the coming into force of this Act for which a final judgment has not been pronounced.
The right to maintenance after divorce remains determined by the provisions of former articles 301, 306, 307 and 307bis of the same Code, without prejudice to §§ 3 and 5.
§ 3. Where the divorce has been pronounced before the coming into force of this Act, pursuant to former sections 229, 231 and 232 of the same Code, the right to pension under section 301 of the same Code remains acquired or excluded under the preceding legal conditions.
§ 4. For the purposes of the provisions of Article 301, §§ 2, 3 and 5, of the same Code, as amended by Article 7, it may be referred to facts prior to the coming into force of this Act.
§ 5. Article 301, § 4, of the same Code, as amended by Article 7, is applicable to maintenance fixed by a judgment prior to the coming into force of the latter.
If the duration of this pension has not been determined, the period of Article 301, § 4, shall take place on the date of the coming into force of this Act.
If the duration of the pension has been determined, the period of time shall remain in effect, without exceeding the limit provided for in paragraph 2.
§ 6. Section 1274 of the same Code, as amended by section 28, is not applicable to judgments pronounced before the coming into force of this Act, where the closure of proceedings has been pronounced before it.
Art. 43. Article 1294bis, § 2, of the Judicial Code, as amended by Article 36, is not applicable to the conventions signed by the parties prior to the entry into force of the latter.
CHAPTER VIl. - Entry into force
Art. 44. This Act comes into force on 1^er September 2007.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 27 April 2007.
ALBERT
By the King:
The Minister of Justice,
L. ONKELINX
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Regular session 2005-2006:
House of Representatives.
Documents 51 2341 (2005/2006). - 001: Bill. - 002 to 006: Amendments. - 007: Report. - 008 to 017: Amendments. - 018: Report. - 019: Text adopted by the commission. - 020: Amendments. - 021: Text adopted in plenary and transmitted to the Senate.
See also: Full Report: February 14 and 15, 2007.
Senate.
Documents 3-2068-2006/2007. - No. 1: Project referred to by the Senate. - N^bones 2 and 3: Amendments. - Number four: Report. - No. 5: Text amended by the commission. - No. 6: Amendments filed after approval of the report. - No. 7: Text amended by the commission. - Number 8: Report. No. 9: Text amended by the Senate and referred to the House of Representatives.
See also: Annales of the Senate: March 22, 2007.
House of Representatives.
Documents 51 2341 (2006/2007). - 022: draft amended by the Senate. - 023: Amendments. - 024: Report. - 025: Text corrected by the commission. - 026: Amendment after report. - 027: Text adopted in plenary and subject to Royal Assent.
See also: Full Report: April 12, 2007.