Divorce by mutual consent in Belgium: the fastest and calmest route

When both spouses agree on the divorce and on all of its consequences, divorce by mutual consent (echtscheiding door onderlinge toestemming / divorce par consentement mutuel) is usually the fastest, least expensive and most discreet route in Belgium. Everything, however, depends on the quality of the agreements you conclude beforehand. They settle your assets, your children and your future, and mistakes are often difficult to correct afterwards. This article explains what the agreements must contain, how the procedure works and what you can still change later.

What is divorce by mutual consent in Belgium?

In a divorce by mutual consent, both spouses want to divorce and make clear, written arrangements in advance on all of its consequences: the division of their property, any maintenance payable between them and, if they have children, the arrangements for the children. Only once there is agreement on everything can the procedure be started. Neither a minimum length of marriage nor a prior period of de facto separation is required.

If the spouses disagree on one or more points, divorce on the ground of irretrievable breakdown (onherstelbare ontwrichting / désunion irrémédiable) remains available. An overview of both procedures can be found in our article on divorce in Belgium: procedure, costs and steps.

What must the agreements contain?

Assets and property

• the division of household contents and movable property, such as furniture and vehicles;
• the division of accounts, cash and investments, and the settlement of debts;
• what happens to the home: selling it and sharing the proceeds, a buy-out by one spouse, or keeping it in undivided joint ownership (onverdeeldheid / indivision) for a clearly agreed period (five years at most, renewable; Article 3.75 of the Civil Code);
• any maintenance between the spouses: the amount, its indexation and the circumstances in which it may be reviewed or come to an end;
• the arrangements on inheritance rights between the spouses in case one of them dies before the divorce becomes final (Article 1287 of the Judicial Code).

In this division the spouses are free: they do not have to follow the rules of their matrimonial property regime or marriage contract. The settlement must, however, be complete: all assets and all debts must be dealt with. The agreements also determine where each spouse will live during the procedure.

If the spouses own real estate, such as the family home, the arrangements concerning it must be recorded in a notarial deed. Transferring or dividing real estate may also give rise to registration duties, such as partition duty (verdelingsrecht / droit de partage), the rate of which differs from one Region to another.

The children

• the exercise of parental authority, which is joint as a rule;
• the residence arrangements (verblijfsregeling / hébergement), including school holidays and public holidays;
• each parent’s contribution to the children’s maintenance, upbringing and education, and the sharing of extraordinary expenses.

A good agreement goes beyond a template. It also provides for indexation, for the handling of extraordinary expenses and for what happens when circumstances change. Read more about child maintenance and about residence arrangements.

How does the divorce by mutual consent procedure work?

1. The agreements are drafted and signed, together with the petition.
2. The file is lodged with the registry of the family court (familierechtbank / tribunal de la famille).
3. The judge examines the agreements. The judge checks that they comply with the law. If the arrangements for the children are manifestly contrary to their interests, the judge may have them amended.
4. The judge pronounces the divorce. A period of one month then follows during which an appeal is possible (Article 1299 of the Judicial Code). The judgment is then forwarded to the civil registry, which records the divorce.

Since 1 September 2018, the spouses have, in principle, no longer been required to appear in person (Article 1289 of the Judicial Code). The procedure is conducted in writing. The judge may, however, order a personal appearance if he or she considers it necessary, or if one of the spouses or the public prosecutor’s office (openbaar ministerie / ministère public) requests it.

What can still be changed afterwards?

• The arrangements for the children, such as residence and child maintenance, can be adjusted by the family court when new circumstances arise.
• Maintenance between the former spouses can later, in the event of new circumstances, be increased, reduced or ended by the court, unless the spouses expressly agreed that this would not be possible.
• The division of the assets is, in principle, final.

That is precisely why the financial settlement deserves the greatest care. A forgotten savings account, a vague arrangement about a loan, or a home that is “settled” on paper but legally remains in joint ownership can still lead to disputes years later.

Why use a lawyer, even when you agree?

An agreement is only valuable if it is complete, clear and enforceable. A lawyer checks that nothing has been overlooked, turns your arrangements into a legally watertight text and safeguards the interests of the children.

The lawyer can also assess the tax consequences of the division and of any maintenance, so that there are no surprises later. Each spouse may be assisted by his or her own lawyer. If a sticking point remains, an accredited mediator (erkende bemiddelaar / médiateur agréé) can help to finalise the agreement.

Frequently asked questions

How long does a divorce by mutual consent take?

That depends mainly on the time needed to finalise the agreements and on the court’s workload. A well-prepared file, with all documents available from the outset, speeds up the procedure considerably. After the judgment, the one-month appeal period still has to run.

Do we need to have lived apart for some time?

No. A divorce by mutual consent does not require any prior period of de facto separation. You must, however, agree on all of its consequences.

Is a notary always required?

No. A notary is only required if the spouses own real estate, such as the family home: the arrangements concerning it must then be recorded in a notarial deed. In other cases, a private agreement is sufficient, but it must be drafted with care.

Will the judge hear our children?

Children aged twelve or over are informed in writing by the court registry of their right to be heard by the judge. They decide for themselves whether to take this up: an interview is not compulsory. Younger children may be heard at their own request (Article 1004/1 of the Judicial Code).

What if we cannot agree on one point?

We then look for a targeted solution, possibly through mediation. If that fails, divorce on the ground of irretrievable breakdown remains available, and the family court can decide on the disputed points.

Novex Advocaten at your side

Separating, but with everything properly settled? From our office in Brussels, we draft your agreements to measure, check the financial side and guide you through the procedure up to the judgment. We can assist you in English, French, Dutch and Arabic. See also our article on maintenance between former spouses.

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