International marriages

International marriages:

Othello and Desdemona (Shakespeare:The Moor of Venice)

1. In our current multicultural society, it sometimes happens that couples opt to marry abroad.

After the fantastic party, beautiful children and several years of being happily married, it may happen that there is a hitch.

And what then? Does one have to go abroad to obtain interim measures and possibly a divorce and what about the applicable law?

Since the Act of 16 July 2004 on the Code of Private International Law, these questions and even more complex cases have been handled.

However, the answer will differ depending on whether the question relates to the personal consequences of marriage, divorce, separation from bed an broad and annulment or matrimonial property law:

2. The personal consequences of marriage

If a number of reciprocal obligations (cohabitation, faithfulness, duty of assistance, duty to aid) are not complied with between spouses, a claim can be brought in Belgium in one of the following cases:

The defendant is domiciled in Belgium;
The defendant has his habitual residence in Belgium;
The last common habitual residence of the spouses was in Belgium and that was no more than one year before the claim was brought;
The spouse bringing the claim has been habitually resident in Belgium for more than a year;
Both spouses are Belgian;
In the event of a joint application, one of the spouses has his habitual residence in Belgium;
In exceptional cases: when the case has close links with Belgium, and proceedings abroad prove impossible or it would be unreasonable to require the claim to be brought abroad.

There is a cascade system to determine which law should be applied by the Belgian court:

You first look at the law of the country where both spouses have their habitual residence at the time the consequences are invoked (that is, at the time of the act about which the dispute exists);
Are the spouses not habitually resident in the same country? In that case, the law of the country of which both persons are nationals will be applied at the time the consequences are invoked, or at the time of the act about which the dispute exists;
In other cases, Belgian law is applicable.

3. Divorce, legal separation and marriage annulment

An action for a marriage annulment can be brought in Belgium in one of the following cases:

As a defendant you have your habitual residence in Belgium;
As spouses you have your habitual residence in Belgium;
Your last habitual residence as a spouse was in Belgium, while one of you still resides here;
As an applicant you have had a habitual residence in Belgium for at least one year;
As an applicant you are Belgian and you have been habitually resident in Belgium for at least six months;
Both spouses are Belgian;
In case of a joint application, it is sufficient if one of the spouses has his habitual residence in Belgium;
In exceptional cases: when the case has close links with Belgium, and a procedure abroad proves impossible or it would be unreasonable to require the claim to be brought abroad;

There is a cascade system to determine which law should be applied by the Belgian court:

The law of the country in which the spouses have their habitual residence at the time the case is brought to court;
Is there no habitual residence in the same country? Then one looks at the law of the country where the spouses had their last habitual residence, if two conditions are met:

Residence did not end more than one year before the proceedings were brought to court and one of the spouses is still residing in that country at the time of the proceedings;
When this is not applicable? Then the law of the country of which both spouses have the nationality at the time the case is brought is considered.

In all other cases, Belgian law applies.

4 . Matrimonial property law

4.1. The code provides that marriages celebrated from 1 October 2004 will be subject to:

The law of the country where the spouses established their first common habitual residence after marriage or, if this is not possible :
The law of the country of which both spouses were nationals at the time of the marriage, and if this is also not possible:
The law of the country from which the marriage has taken place.

Of course, as a couple you can also choose the applicable law yourself at the conclusion of the marriage. In this case, your freedom of choice is limited to one of the following legal systems:

The law of the state where the spouses established their first habitual residence;
The law of the state where the spouses have their current habituallresidence;
The law of the state of which one of the spouses is a national.

This choice can be made at the time of entering into the marriage, but also later and can also be changed. A later choice can also be given retroactive effect, provided of course that the rights of third parties are not harmed.

The choice must refer to the full equity.

Once the applicable law has been chosen, the spouses can also opt for a matrimonial property regime if the chosen law permits it. If they don’t make a choice, they will be subject to the legal system of that chosen law.

4.2. What about marriages before 2004?

Spouses married before the 1ste October 2004 will be subject to the law of the state of which both spouses are nationals at the time of marriage. If there is no common nationality, this will be the law of the first marital residence.

Private international law is and will remain a complex subject.

If you have additional questions or want to initiate a specific claim, we will be happy to help you.