Urgent and interim measures before the family court in Belgium

A partner who suddenly empties the bank accounts, a family home where the tension becomes unbearable, children caught between their parents: a relationship crisis does not wait for divorce proceedings to end. That is why the family court (familierechtbank / tribunal de la famille) can quickly order urgent and interim measures to organise the period of the separation. This article explains who can apply for urgent measures before the family court in Belgium, what the judge can decide and how best to prepare for the first hearing.

Who can apply for urgent measures before the family court?

Married spouses

If one spouse seriously fails in his or her duties, or if the relationship between the spouses is seriously disrupted, the family court orders urgent and interim measures at the request of either spouse, under Article 223 of the former Civil Code (oud Burgerlijk Wetboek / ancien Code civil). These measures concern the person and the property of the spouses and of the children. No divorce proceedings are needed for this.

If divorce proceedings are already pending, interim measures can be requested within those proceedings, under Article 1280 of the Judicial Code (Gerechtelijk Wetboek / Code judiciaire). In both cases the measures remain provisional: the judge can amend or revoke them when circumstances change. More about divorce proceedings in Belgium.

Legal cohabitants

Legal cohabitants (wettelijk samenwonenden / cohabitants légaux) can also apply for urgent measures when their relationship is seriously disrupted, under Article 1479 of the former Civil Code. In principle, these measures cease to have effect when the legal cohabitation ends. After it has ended, the court can still order urgent and interim measures justified by the termination, provided the application is filed within three months. The judge then decides how long those measures will apply.

De facto cohabitants

For de facto cohabitants (feitelijk samenwonenden / cohabitants de fait), there is no comparable statutory scheme between the partners themselves. In an urgent dispute about, for example, the home or jointly owned property, they must rely on the ordinary rules, such as summary proceedings (kort geding / référé). The family court can, however, rule urgently on the children, as it can for all parents, whether they are married or cohabiting.

What can the family court decide on an interim basis?

The judge has wide discretion. Depending on the situation, the judge can order, among other things, the following measures:

• separate residence, and who stays in the family home for the time being;
• parental authority, the children’s residence arrangements and personal contact;
• child maintenance and, between spouses, interim spousal maintenance or a contribution to the household expenses (bijdrage in de lasten van het huwelijk / contribution aux charges du mariage);
• personal use of movable property, such as the car;
• measures to protect assets, such as a prohibition on selling or mortgaging property without the other partner’s consent;
• an authorisation to collect (ontvangstmachtiging / délégation de sommes), allowing maintenance to be collected directly from the employer or another third party.

This list is not exhaustive. The judge tailors the measures to what the family needs at that moment, guided by the interests of the children.

Who stays in the family home?

The judge decides who stays in the family home for the time being, taking into account the interests of the children, each partner’s ability to live elsewhere and the family’s specific circumstances. This allocation is provisional and says nothing about ownership of the home: that is only settled definitively when the property is divided.

The judge can also decide who provisionally pays the ongoing loan repayments and the fixed costs of the home. A partner who occupies the home alone may owe compensation for that use when the property is later divided, unless otherwise decided or agreed. Keep all proof of payment: it will matter in the final settlement.

Urgent measures in cases of domestic violence

If a spouse or legal cohabitant has committed certain acts of violence against the other partner, or if there are serious indications of such acts, the judge gives priority use of the family home to the victim who requests it. This rule is departed from only in exceptional circumstances.

Separately, the public prosecutor (procureur des Konings / procureur du Roi) can order a temporary barring order (tijdelijk huisverbod / interdiction temporaire de résidence) when the presence of an adult in the home poses a serious and immediate threat to the safety of the other occupants. That order applies for a maximum of fourteen days. The family court can extend it for a maximum of three months.

The procedure for urgent measures: faster than you think

The law presumes that certain claims are urgent, including those concerning separate residence, parental authority, the children’s residence and personal contact with them, and maintenance obligations (Article 1253ter/4, § 2, of the Judicial Code). You therefore do not need to prove urgency separately, and the case is dealt with at short notice. In cases involving minor children, the parents must in principle appear in person.

In cases of absolute necessity, where any delay would cause irreparable harm, the president of the court of first instance (voorzitter van de rechtbank van eerste aanleg / président du tribunal de première instance) can be seised by unilateral application (eenzijdig verzoekschrift / requête unilatérale; Article 584 of the Judicial Code). This remains exceptional.

Cases presumed urgent remain on the family court’s list (Article 1253ter/7 of the Judicial Code). If new elements arise, the case can simply be brought back before the court by written submissions or a written request, without a new writ of summons. More about residence arrangements and co-parenting.

Strategy: the first decision carries great weight

Interim measures are temporary in law, but in practice they often set the course. A residence arrangement that has worked well for months is rarely overturned completely. The first hearing therefore deserves a fully prepared file:

• proof of the income and fixed costs of both partners;
• a concrete plan for the children’s childcare, schooling and free time;
• objective documents on the family situation, such as messages, certificates and school reports;
• a realistic proposal, rather than a list of grievances.

Do not wait too long either. The longer a de facto situation lasts, the harder it becomes to change it afterwards.

Frequently asked questions

How quickly can I get a hearing?

Cases presumed urgent are dealt with at short notice. Exactly how quickly depends on the court’s workload. In cases of absolute necessity, a decision can be obtained even faster.

Do I have to file for divorce to obtain measures?

No. Spouses can apply for urgent measures without divorce proceedings, when one of them seriously fails in his or her duties or when the relationship is seriously disrupted.

Can I simply leave the family home?

Leaving the family home does not mean losing any ownership rights. You do, however, create a de facto situation that the judge may take into account, especially regarding the children’s residence. Take legal advice beforehand, unless your safety or that of the children requires you to leave immediately.

Will my child be heard by the judge?

A minor aged twelve or over is informed by the judge of his or her right to be heard (Article 1004/1 of the Judicial Code). The child is not obliged to take up that invitation. The interview is not a choice between the parents: the judge decides, with the child’s best interests as the yardstick.

What about domestic violence?

In acute danger, call the emergency number 112. Besides the civil measures, the public prosecutor’s office can also act, for example with a temporary barring order or a criminal prosecution. We coordinate both tracks.

Novex Advocaten at your side

An acute family situation calls for a fast and well-considered response. We initiate the proceedings, prepare your file thoroughly and defend your interests and those of your children before the family court. We assist you in English, French, Dutch and Arabic.

Read also our articles on child maintenance and maintenance between former spouses.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.