Question 1

When to use contested divorce?

Accepted Answer

When spouses disagree on terms, or only one wants to divorce.

This procedure in fact contains two distinct routes, and they take very different lengths of time. Article 229, § 1 of the former Civil Code allows the breakdown to be **proven**: the divorce is granted where the judge finds a breakdown rendering it reasonably impossible to continue married life and to resume it, and that proof may be established by any legal means. In that case, article 1255, § 5 of the Judicial Code provides that the judge may pronounce the divorce without delay.

Paragraphs 2 and 3 of the same article 229 open the second route, that of time: the breakdown is treated as **established**, with nothing to demonstrate, after more than six months of de facto separation where both spouses petition jointly, or more than one year where only one does.

The choice is not, moreover, final. If the respondent spouse consents during the proceedings, article 1255, § 3 provides that the divorce is pronounced under the shorter timeframes applicable to a joint petition. A case brought in disagreement can therefore end in agreement.

Question 2

What duration of separation must be proven?

Accepted Answer

6 months for joint request, 1 year for unilateral. Breakdown can also be proven by any means.

Article 1255, § 4 of the Judicial Code states how the separation is proven: it may be established by any legal means, except admission and oath, and in particular by producing residence certificates showing registrations at different addresses. Hence the practical importance of the date on which the residences were separated.

Where the period has not yet elapsed at the hearing, the case is not dismissed for that reason. The judge sets a new hearing, immediately after the period expires, or, for a joint petition, three months after the first hearing. At that second hearing the divorce is pronounced if the parties confirm their intention, or, on a unilateral petition, if one of them so requests.

Article 229 opens a further possibility: the breakdown is also established where the petition is **repeated twice** under the conditions of article 1255.

Question 3

Who decides on the terms?

Accepted Answer

The judge decides on disputed points: child custody, alimony, asset division.

Custody of the children, maintenance and the division of assets do not follow the same procedural route.

Children's residence and maintenance obligations are among the matters that article 1253ter/4 of the Judicial Code **deems urgent**: they can be settled quickly, with the family court sitting in summary proceedings, without waiting for the outcome of the divorce.

The division of assets follows another route. Article 1207 brings the liquidation and division claim before the family court, but the operation itself is conducted by an appointed **liquidating notary**, who draws up the liquidation statement; the court rules on all disputes brought before it and records any agreements of the parties, those agreements then having the force of a judgment. This is why the division frequently continues after the divorce has been pronounced.

The judge, moreover, is not confined to adjudicating. Article 1255, § 6 requires the court to inform the parties of the possibility of resolving their dispute through conciliation, mediation or any other amicable route; if it finds that a rapprochement is possible, it may stay the proceedings for up to one month and refer the file to the family court's amicable settlement chamber.

Question 4

How long does the procedure take?

Accepted Answer

Timelines vary depending on case complexity, the degree of disagreement and any appeal. During the first consultation, Mrs. Satti will provide a realistic estimate of timelines specific to your situation.

Several procedures run in parallel, each at its own pace. The divorce itself depends on the route chosen: pronounced without delay where the breakdown is proven, or paced by the six-month and one-year periods of article 1255. Provisional measures move faster, since separate residences, parental authority, children's residence and maintenance obligations are deemed urgent and may be brought by inter partes petition, by writ, or by joint petition.

The liquidation of the matrimonial regime follows a pace of its own: it goes through a liquidating notary and often continues after the divorce is pronounced. A divorce may therefore be final while the division is not yet complete, without the procedure being halted.

Question 5

Can provisional measures be requested?

Accepted Answer

Yes: separate residence, alimony, child custody can be set urgently during proceedings.

Article 1253ter/4 of the Judicial Code **presumes urgency**. Matters relating to separate residences, parental authority, foster care, a minor child's residence and right to personal contact, and maintenance obligations are all deemed urgent. For these matters urgency therefore does not have to be demonstrated: it follows from the law.

Such matters may be brought by inter partes petition, by writ, or by joint petition, and article 1280 confirms that it is the **family court** that hears these urgent measures, at the request of the parties or of the public prosecutor. The court may also order a prohibition on disposing of or mortgaging mortgageable property where such a prohibition is sought, which makes it possible to protect a jointly owned property during the proceedings.

Contested divorce in Brussels (irretrievable breakdown)

What is contested divorce (irretrievable breakdown)?

The grounds for irretrievable breakdown in Belgium

The contested divorce procedure

The effects of contested divorce

Alimony in contested divorce

How Sarah Satti can help you

Frequently asked questions

Sarah Satti

Related topics

Divorce by mutual consent

Alimony

Asset division

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