Question 1

Difference between de facto separation and divorce?

Accepted Answer

De facto separation maintains the marriage and all its obligations. Divorce dissolves the marriage definitively.

Article 213 of the former Civil Code states what maintaining the marriage covers: spouses have a duty to live together and owe each other fidelity, support and assistance. De facto separation removes none of these duties: it leaves them intact while making the first one, in reality, unenforceable.

De facto separation is nonetheless not a state without legal effects. It starts the periods of article 229 of the former Civil Code running: six months for a joint divorce petition, one year for a petition by a single spouse. Its date is therefore a matter to be established carefully, since it determines when a divorce may be obtained without having to prove anything.

Nor does it oblige anyone to wait: separate residences, parental authority, children's residence and maintenance obligations may be settled at that stage by the family court, without any divorce proceedings having been started.

Question 2

Is a lawyer needed for de facto separation?

Accepted Answer

Not mandatory, but strongly recommended to settle residence, child custody and financial obligations.

The date of separation determines when a divorce may be sought without having to prove anything. That date is established by any legal means, except admission and oath, and in particular by producing residence certificates showing registrations at different addresses (article 1255, § 4 of the Judicial Code). A separation that was not formalised at the outset is therefore open to argument later.

The most urgent matters, separate residences, parental authority, children's residence, maintenance obligations, are precisely those the law deems urgent and which the family court can decide quickly. They still have to be identified and quantified.

Question 3

Can de facto separation lead to divorce?

Accepted Answer

Yes: after 6 months (joint request) or 1 year (unilateral), divorce based on irretrievable breakdown can be obtained.

Once these periods have elapsed, the irretrievable breakdown is treated as **established**: there is nothing to prove, no fault, no blame. Paragraphs 2 and 3 of article 229 of the former Civil Code say so expressly.

If the period has not yet elapsed on the day of the hearing, the petition is not dismissed: the judge sets a new hearing immediately after the period expires, and the divorce is pronounced there if the parties confirm their intention, or, on a unilateral petition, if one of them so requests.

Waiting is not required either: where the breakdown can be proven by any legal means, the judge can grant the divorce without delay. De facto separation is therefore one route among others to obtaining a divorce.

Question 4

Do marital obligations continue?

Accepted Answer

Yes: the duties of fidelity, support and assistance continue, as does joint liability for debts incurred for the needs of the household and the children's upbringing, except where they are excessive in the light of the household's resources. For tax purposes, tax assessed in the name of one spouse may in principle be recovered against the property of both; in the event of de facto separation, that recovery is no longer possible against the other spouse's income for income received from the second calendar year following the year of the separation.

The basis is article 213 of the former Civil Code, under which spouses have a duty to live together and owe each other fidelity, support and assistance. These duties end only with the marriage itself.

The duty of support has the most concrete consequences during a de facto separation: it is the basis for seeking a financial contribution from the spouse with the greater resources, without waiting for divorce proceedings to be started. Such a claim falls under maintenance obligations, which the law classes among matters deemed urgent.

Question 5

How to set alimony during de facto separation?

Accepted Answer

Either by mutual agreement or, failing agreement, by decision of the family court, which rules in summary proceedings where urgency is invoked.

De facto separation in Brussels

What is de facto separation?

De facto separation: different residences

Marital obligations continue

De facto separation can lead to divorce

Why consult a lawyer before a de facto separation?

How Sarah Satti can help you

Frequently asked questions

Sarah Satti

Related topics

Divorce by mutual consent

Contested divorce (irretrievable breakdown)

Child custody

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