Belgium is a member state to:

• the Council Regulation (EC) No 2201/2003 of 27 November 2003 (“Brussels IIbis Regulation”) (applicable to divorce cases lodged before 1 August 2022)
• the Council Regulation (EC) 2019/1111 of 25 June 2019 (the “Brussels IIter Regulation”) (applicable to divorce cases lodged on or after 1 August 2022)

Belgian courts apply the Brussels IIbis or IIter Regulations to determine jurisdiction on divorce cases. The connecting factors are:

• habitual residence of the spouses;
• last habitual residence of the spouses, insofar as one of them still resides there;
• habitual residence of the respondent;
• in the event of a joint application, habitual residence of one spouse;
• habitual residence of the applicant who resided there for at least a year immediately preceding the application;
• habitual residence of the applicant who resided there for at least six months immediately preceding the application and is either a national of the Member State in question; or
• nationality of both spouses.

Under the aforementioned regulations, a place will be considered to be the habitual residence when the person intends to establish the centre of their interests there and their presence in that place presents a sufficient degree of stability.

In case Belgian courts cannot claim jurisdiction based on the aforementioned Regulations, the Belgian courts will exceptionally have jurisdiction when the matter presents close connections with Belgium and proceedings abroad seem impossible or when it would be unreasonable to demand that the action be brought abroad.

Regarding property division, the Belgian courts will apply the Regulation 2016/1103 of 24 June 2016 (“Matrimonial Property Regulation”). According to this Regulation if a Belgian court is seized to adjudicate an application for divorce under the Brussels IIbis or IIter Regulation, it will also have jurisdiction to rule on issues related to the matrimonial property regime that arise in connection with that application.

In cases where the divorce is pronounced in a third state, the Belgian courts may assert jurisdiction over the division of property between the spouses if they are habitually residing in Belgium at the time the court is seized. If this is not the case, jurisdiction may exist if they were last habitually residing in Belgium and one of them still resides there when the court is seized. Alternatively, jurisdiction can be claimed if the respondent is habitually residing in Belgium when the court is seized, or if both spouses hold Belgian nationality.

Pursuant to the Brussel IIbis and IIter Regulations, Belgian courts will stay divorce proceedings if another court of a member state to the Regulation was first seized to handle the divorce case, until that court establishes its jurisdiction.

Where the jurisdiction of the court first seized is established, the Belgian courts shall decline jurisdiction in favour of the court first seized.

In divorce cases where the Belgian Code of Private International Law applies (because no EU or other international instrument applies), Belgian courts should stay proceedings when a claim between the same parties and involving the same cause of action is pending before a foreign court which was seized first and it is foreseeable that the foreign decision will be likely to be recognised or enforced in Belgium.

Belgian is a member to the Regulation 1259/2010 of 20 December 2010 (“Rome III Regulation”) which defines the applicable law to divorce and legal separation. Belgian courts will apply the rules of this Regulation when it has jurisdiction to rule over a divorce application.

If the spouses did not make a valid choice of applicable law, the law of the State where the spouses are habitually residing at the time the court is seized will apply. If there is no habitual residence, the law of the place where they were last habitually residing will apply, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized. Failing that, the law of the State of which both spouses are nationals at the time the court is seized will apply. Or, lastly, if none of the other criteria upholds, the law of the State where the court is seized will apply.

Spouses can file for divorce on grounds of irretrievable breakdown by making an application at the Family Court. Irretrievable breakdown may be proven by any legal means. The law considers that this irretrievable breakdown is established, either:

• when the application for divorce is made jointly by the two spouses after more than six months of de facto separation or, when this application is repeated, the second time is three months after the initial hearing.
• when the application is made by one spouse after more than one year of de facto separation or, when it is repeated, the second time is one year after the hearing at which the application was made.

Irretrievable breakdown may be proven by other facts, such as duly established acts of domestic violence, adultery or any other fact that makes it impossible to resume or continue living together.

Belgium no longer recognizes fault-based divorce. However, the issue of fault may still arise in certain cases, such as in maintenance disputes between ex-spouses or when determining the irretrievable breakdown of the marriage.

There is also a possibility to divorce by mutual consent if the spouses can reach an agreement on all custody and maintenance aspects related to their joint minor children (if any) as well as on all aspects concerning their personal rights (such as their right to personal maintenance) and all aspects of matrimonial law, including the division of their matrimonial assets. If the conditions are met, the court will grant the divorce and approve the agreement relating to the children.

An application for divorce on the grounds of irretrievable breakdown can be filed in the following ways:

• By writ of summons: This is served on the defendant by a bailiff on behalf of the plaintiff. It is not required to serve the defendant in person.
• By petition: This is served on the defendant by the clerk of the Family Court at the request of the plaintiff.

The court is seized either from the date the writ is served by the bailiff or from the date the petition is lodged with the Family Court.

For divorce by mutual consent, the application is filed with the clerk of the Family Court via joint petition submitted by both spouses.

A foreign marriage will be recognized in Belgium without any specific proceedings if the validity of the marriage is established in accordance with the applicable law pursuant to the provisions of the Belgian Code of Private International Law, both in terms of substantive and formal conditions. According to the Belgian Code the formal conditions of marriage are governed by the law of the State in whose territory the marriage is celebrated and the substantive conditions for the validity of the marriage are governed, for each spouse, by the law of the State of which they are a national at the time of the celebration of the marriage.

A divorce decision given in a Member State to the Brussels IIbis/ter Regulation shall be recognised in Belgium without any special procedure being required. The party that wishes to invoke the foreign divorce decision in Belgium shall need to produce a copy of the decision which satisfies the conditions necessary to establish its authenticity and a certificate issued by the Court of the Member State in which the divorce was pronounced. There are standard certificates annexed to the Brussels IIbis/ter Regulation for the courts of the Member States to use.

In the absence of a specific bilateral or multilateral international convention on the recognition of foreign judgments, the recognition of a foreign divorce decision would be governed by the Belgian Code of Private International Law. Generally, foreign divorce decisions are recognized without the need for formal proceedings. However, recognition may be refused on certain grounds, such as if it would be manifestly incompatible with public policy or if the rights of defence were violated.

Same sex marriages have been legalised in Belgium since 2003. Belgium recognizes same-sex marriages that have been performed in other jurisdictions under the same conditions as it recognizes other marriages.  

Upon divorce on the grounds of irretrievable breakdown the court will order the division of the assets of the ex-spouses. The division is made in accordance with their matrimonial property regime and will be carried out by a notary public if the parties cannot agree on the division.

The economically weaker ex-spouse can also make a claim for personal maintenance. In order to receive personal maintenance the ex-spouse needs to prove that he or she is cannot cover his/her state of need with his/her own income. The amount of maintenance is determined based on the income and capacities of both ex-spouses. The court will also take into account the significant decline in the economic situation of the petitioner. The court will base its assessment of that regression on the duration of the marriage, the age of the parties, their behaviour during the marriage with regard to the organisation of their needs, the dependent children during cohabitation or thereafter,… The maintenance allowance is generally capped at one-third of the debtor’s income.

The period for which maintenance is granted is in principle limited to the duration of the marriage, however exceptions can be granted.

If the defendant proves that the state of need of the petitioner is the result of a unilateral decision made by the latter and without the needs of the family justifying this choice, they may be exempted from paying the allowance or only required to pay a reduced allowance.

A distinction must be made between statutory pensions (1^st pillar pensions) and supplementary pensions (2^nd pillar pensions):

• Under the rules of Belgian matrimonial property law, the entitlement to a statutory pension (1st pillar pension) paid by the State based on the professional career of one of the spouses is considered an asset belonging to that spouse’s own estate. The division or settlement of pension rights from the 1st pillar is not governed by Belgian matrimonial property law but by Belgian social security law. No orders can be made in relation to statutory pensions.
• Supplementary pensions (2nd pillar pensions) are regarded as joint assets under Belgian matrimonial property law when spouses are married under a community of property regime (such as the statutory regime). The portion of the supplementary pensions accumulated during the marriage must therefore be divided between the spouses in such cases.

In a separation of property regime, each spouse’s income is considered part of their personal assets. Supplementary pensions are also treated as personal assets unless specific contractual agreements state otherwise. As a result, no division of supplementary pensions occurs between spouses married under a separation of property regime.

During divorce proceedings, the court can impose interim measures, such as allowing one spouse to remain in the matrimonial home, prohibiting the spouses from removing assets belonging to the matrimonial property, or – at the request of the economically weaker spouse – to grant maintenance during the proceedings. This maintenance is based on the obligation for spouses to support each other during the marriage.

There is no specific ruling regarding legal costs. Generally, the legal costs of the divorce proceedings (excl. attorney fees) are shared equally by both parties. However, in certain circumstances, the judge may order one party to cover the legal costs of the proceedings. The court may also order one party to pay to the other party an amount to cover its costs of representation by an attorney. The amount of such indemnity is set by law and rarely covers the actual legal fees incurred.

Under Belgian law, divorce proceedings, maintenance claims, and the division of assets are handled as three separate legal proceedings. While they can be combined into a single application, this is not mandatory. As a result, it is possible to file financial claims — such as requests for maintenance or asset division — before a Belgian court, even if the divorce decision was made abroad, provided the Belgian courts have jurisdiction and the claim has not already been adjudicated in a foreign jurisdiction.

According to the Matrimonial Property Regulation financial settlement regarding marital property from other EU member states are recognised in Belgium without additional procedures, except:

• if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
• where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence,
• if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought;
• if it is irreconcilable with an earlier decision given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

Decisions given in an EU member state and enforceable in that state shall also be enforceable in Belgium when – upon the application of any interested party – they have been declared enforceable there in accordance with the procedure provided for in the Matrimonial Property regulation.

The recognition and enforcement of financial settlement regarding marital property made by a non-EU Member State are governed by the rules of the Belgian Code of Private International Law:

• In principle the decision is recognized in Belgium without any court procedure. There are some grounds of refusal of recognition, e.g. when the decision is against public policy or when the rights of defence have not been respected. A financial settlement included in a foreign authentic instrument will generally also be recognized.
• Enforcement of a decision or an authentic document holding a financial settlement regarding marital property requires judicial intervention, initiated by a petition to the Family Court. The enforcement in Belgium can only be ordered if the decision has executory force in the State where the decision/instrument was drawn up.

For financial orders on maintenance the recognition and enforcement depends on whether or not an Member State is bound by the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (“2007 Hague Protocol”).

• The need for an exequatur between Member States to the 2007 Hague Protocol is abolished. Orders given in a Member State bound by the 2007 Hague Protocol shall be recognised in Belgium without any special procedure being required and without any possibility of opposing recognition. Those orders that are enforceable in the Member State bound by the 2007 Hague Protocol shall also be enforceable in Belgium without the need for a declaration of enforceability.
• A decision given in a Member State not bound by the 2007 Hague Protocol shall be recognised in Belgium without any special procedure being required. The decision shall be enforceable in Belgium when – on the application of any interested party ‒ it has been declared enforceable there.

When a Belgian court determines that the applicable law to the matrimonial property regime is a foreign law, it will recognise and apply the property regimes laid out in the law of the foreign State. The applicable law governs the classification of property of either or both spouses into different categories during and after marriage.

Under Belgian law, there is the concept of a marriage contract which couples can establish before or during marriage and in which they can make arrangements regarding the applicable matrimonial regime and the division of the assets. Contrary to a pre- or postnuptial agreement, spouses cannot pre-arrange all financial aspects of a future divorce, such as compensatory maintenance, asset division, or provisions for children in such a marriage contract.

Foreign prenuptial and postnuptial agreements are however in principle recognised in Belgium. If the foreign marriage contract or pre-or postnuptial agreement is established in an authentic deed executed on or after 29th of January 2019 the rules of the Matrimonial Property Regulation will apply. An authentic instrument established in a Member State to the Matrimonial Property Regulation shall have the same evidentiary effects in Belgium as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy in Belgium.

The recognition of a foreign marriage contract or pre-or postnuptial agreement drawn up before 29th of January 2019 or in a non-Member State to the Matrimonial Property Regulation will be governed by the Belgian Code of Private International law. The Belgian Code states that a foreign authentic instrument is recognized by any authority in Belgium without the need for any procedure if the validity is established in accordance with the law applicable by virtue of the Private International Law Code. The authentic deed must satisfy the conditions necessary to establish authenticity under the law of the State where is was drawn up. However, the deed may not be manifestly incompatible with public policy and will only be recognized in so far as the parties have not tried to evade the application of the law designated by the Private International Law Code.

There are however some points of attention. For example, in the event Belgian substantive maintenance law would be applicable, a plain waiver of a right to maintenance in a pre- or postnuptial agreement would not be considered to be valid and would be set aside. Under Belgian law a waiver of the right to maintenance after divorce, prior to the dissolution of the marriage is not valid. Only after the dissolution of the marriage could such a waiver be validly carried out.

Parents are required to provide housing, maintenance, healthcare, supervision, education, training, and development for their children, in proportion to their cumulated financial means. This obligation continues beyond the age of 18 (majority age) if the child’s education has not been completed.

In cases where parents disagree on child maintenance or if one parent fails to meet their obligations, an application for child maintenance can be submitted to the Family Court. Minors (children under 18) cannot file for maintenance directly from their parents.

Child maintenance is determined based on the needs of the child and the means of the parents. The means of the parents include all professional, personal, and property income, as well as any benefits or other resources that contribute to the parents’ standard of living. A child is entitled to share in the standard of living enjoyed by their parents. The child’s living arrangements and each parent’s in-kind contributions as part of these arrangements are also considered when determining the amount of maintenance.

The amount of child maintenance can always be adjusted based on the child’s evolving needs and if circumstances change for reasons beyond the parents’ control.

Belgian law does not allow other orders for financial provisions for children.

Unmarried couples have the option to either remain in a de facto union, with minimal rights and obligations toward one another, or choose to enter into a registered partnership. To establish a registered partnership, both partners must jointly declare their intent at the civil registry. Registered partnerships can be dissolved unilaterally.

If the relationship between registered partners becomes seriously disrupted, the Family Court can order interim measures (such as maintenance) under certain circumstances. These measures automatically expire when the registered partnership is terminated (except those related to their common children).

Once cohabitation has ended, it is also possible to apply to the judge for urgent and provisional measures, subject to certain conditions. However, there is no legal basis to award maintenance between partners after separation. While some legal scholars argue that maintenance post-separation between registered partners should be possible, this view is contested. Nonetheless, the partners can include provisions for maintenance payments in a registered partnership agreement, which must be notarized.

Unmarried partners in a de facto union do not have the same legal rights or protections. If they separate, no legal safeguards apply.

Following a separation, registered partners or those in a de facto union may request the division of undivided assets. They may also seek compensation for any asset shifts that occurred between them, based on the legal principle of unjustified enrichment.

Parental responsibility is typically shared by both parents, requiring them to make joint decisions on significant matters concerning their children’s upbringing and care. In rare cases, a court may grant one parent exclusive parental responsibility, but this is only done under exceptional circumstances with compelling justification.

The rules governing parental responsibility and custody remain the same, whether the parents are married, living together, or separated.

Under the Brussels II bis/ter Regulation, Belgian courts have jurisdiction over child custody or child arrangement matters if the child is habitually resident in Belgium when the court is seized. A child’s habitual residence is defined as the place where their social life is centered, determined by the specific circumstances of each case.

If the child relocates to another country during Belgian proceedings, this typically does not affect the international jurisdiction of the Belgian court.

In exceptional cases, Belgian courts can request a court in another Member State under the Brussels IIbis/ter Regulation to assume jurisdiction if they believe the other court, due to a particular connection with the child, is better positioned to determine what is in the child’s best interests.

If Belgian courts lack jurisdiction under the Brussels IIbis/ter Regulation, they must first confirm that no other Member State governed by those conventions can assert jurisdiction. Only then can they assume jurisdiction based on another international instrument, such as the Hague Convention of 19 October 1996, or the Belgian Code of Private International Law.

Regarding custody, evenly divided residence with both parents is generally preferred. When assessing this arrangement, the court will prioritize the child’s best interests and the quality of contact with each parent. While the parents’ interests may also be considered, they must not compromise the child’s welfare. Additional factors the court evaluates include the need for a stable environment, financial feasibility, parental lifestyles, availability of the parents and educational capabilities of the parents.

Children aged 12 and older have the right to be heard in court, although they are not obligated to do so and may refuse. The court will hear the child privately, with only the Family Court clerk present. The child’s opinion will be given appropriate weight based on their age and maturity.

Children under 12 may be heard if they or one of the parties, the public prosecutor, or the court requests it. However, the judge can decline to hear a child under 12, except when the request is made by the child or the public prosecutor.

When a parent wishes to relocate, either within or outside Belgium, and this move would prevent them from adhering to the existing child arrangements, they must obtain the consent of the other parent who shares parental responsibility for the relocation and modification of the current arrangements.

If no mutual agreement can be reached, the relocating parent must seek an order from the Family Court to alter the existing child arrangements. The court will assess the request by considering the best interests of the children and parents, along with factors such as the child’s age, the distance of the new location, the reason for relocation, the separation of siblings, the need for stability, and other relevant circumstances.

Custody orders issued in a Member State under the Brussels IIbis/ter Regulation are recognised in Belgium without any special procedure being required and without any possibility of opposing its recognition unless and to the extent that the decision is found to be irreconcilable with a later decision relating to parental responsibility concerning the same child which was given either in Belgium, or, in the state of the child’s habitual residence provided that the later decision fulfils the conditions necessary for its recognition in Belgium.

Custody orders from non-EU Member States or Denmark are also recognized automatically in Belgium under the Hague Convention of 19 October 1996 or the Belgian Code of Private International Law. However, recognition may be refused if there are grounds, such as if the order is manifestly contrary to Belgian public policy, or if it infringes someone’s parental responsibility and was issued without giving that person the opportunity to be heard.

A custody decision issued in an EU Member State (except Denmark), which is enforceable in the state of origin, will be enforced in Belgium under the same conditions as a decision made in Belgium. However, there are grounds for refusal of enforcement.

Enforcement of a custody order from a non-EU Member State that is a contracting party to the Hague Convention of 19 October 1996, and enforceable in that state, can occur upon request by an interested party following Belgian internal procedures.

Other custody orders will be enforced based on the rules of the Belgian Code of Private International Law. Enforcement of these decisions will require judicial intervention, initiated by filing a petition with the Family Court.

Surrogacy in Belgium currently lacks a formal legal framework. While it is not explicitly authorized, it is also not prohibited. As a result, several specialized fertility centers offer surrogacy services. In the absence of legal regulation, these centers establish their own protocols. The absence of a legal framework has several implications:

• There is no automatic establishment of legal parentage with the intended parent. The surrogate is legally considered the child’s mother, and if she is married, her spouse is presumed to be the child’s legal father. It will then be necessary to go through judicial proceedings, which vary depending on the circumstances (e.g. contesting paternity/co-maternity, recognition, adoption), and the outcome is not guaranteed.
• There is no legal protection for intended parents. For instance, if the surrogate decides not to hand over the child, the intended parents have no legal recourse.

While surrogacy is not prohibited, provided it is altruistic, any surrogacy agreement is considered legally void. This is due to the legal principle that the human body and personal status cannot be commercially disposed of.

Additionally, surrogacy must be altruistic, not commercial. Commercial surrogacy arrangements are strictly prohibited. The surrogate can only be reimbursed for expenses directly related to the surrogacy process, such as medical and legal costs. Financial compensation beyond this is not allowed.

Belgian law recognizes mediation, arbitration, and collaborative negotiations as methods for resolving disputes.

Out-of-court mediation takes place independently of court proceedings. The parties mutually agree to engage a third party, the mediator, to help them resolve their dispute. If desired, the agreement can be homologated by a court.

Judicial mediation occurs within the context of a court case. The court can order mediation on its own initiative unless both parties oppose it. It can also be requested by one or both parties, in which case the court proceedings are paused to allow mediation. In family law matters, courts are legally obliged to encourage amicable resolutions at any stage. For this purpose, cases can be referred to the Family Court’s mediation chamber. Once an agreement is reached, it is incorporated into a judgment that is ratified and enforceable.

Collaborative negotiation involves both parties negotiating with the assistance of specially trained and certified collaborative lawyers.

Parties may also choose arbitration to settle their dispute outside the formal court system.