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Family walk

Selected Issues in International Family Law

January 10, 2022

One of the most common reasons to contact a lawyer is a family issue. Nowadays, the number of international marriages, adoptions, but also divorces and child custody cases has increased considerably. In a situation where one of the spouses (parents) is a Belgian national and the second is not, knots  may occur  regarding divorce, division of property, as well as the  shared custody of the children.

here are some  questions that our lawyers have to solve: 

  • We got married in Russia, we lived in Belgium. We are separated and one of the spouses has moved to France. Where should one file for divorce? How and where to share our property after divorce?  

  • Is it possible to apply for divorce and child custody in Ukraine, when a procedure has already been started in Belgium?  

  • I am Belgo-Russian and I started divorce proceedings in Russia. How can I have it recognized in Belgium?

  • We are a married homosexual couple in Belgium. We moved abroad and are looking for a divorce, but the country of residence refuses to do so because same-sex marriage is not recognized.

  • We had difficulty conceiving a child. We used a surrogate mother and are now having difficulties  to change the filiation of our child.

The first point to be addressed is that of  the competence of the Belgian authorities to deal with a file. The main criterion is the (common) residence of the parties. If it is located in Belgium, then the Belgian judicial authorities are competent. 

It happens that the parties have a double residence. It also happens that one of the parties sends the request to the Belgian authorities and the other seizes the foreign jurisdiction. In practice, when two cases are brought before two different judges  within the European Union, the  judge first seized has jurisdiction. Thus, if the Belgian judge is the first judge who had to hear the case, the second judge will have to close the processing of the case or, at the very least, adjourn it.

On the other hand, if a Belgian judge is informed that legal proceedings are already underway in a  third country to the European Union, the Belgian judge may (but is not required to) stay the proceedings until the decision of the foreign court. When deciding whether to adjourn the case, the Belgian judge must check the following condition: can a court decision of a foreign court be recognized in Belgium? In practice, this means that the judge must check whether there is a ground for refusing recognition and enforcement of a foreign decision in Belgium.

The main reason for the refusal may be the fact that the foreign decision is contrary to Belgian public order. Cases concerning parental rights relate to matters of public order.
A contradiction with public order is assessed on the basis of the connection of the case with Belgium (for example, it is considered that the relationship is significant if the child and / or the spouse have lived in Belgium for several years and / or have Belgian nationality) and the seriousness of the consequences on the territory of Belgium (for example: the Belgian minor will no longer live in Belgium and will not be able to see his father regularly).

It should be borne in mind that judges refuse, as a general rule, to postpone the procedure if between Belgium and the State where the case is opened on the same basis, there is no specific agreement to solve the problem if the same case is found in the proceedings of several courts. There is no agreement of this type between Russia and Belgium.
If the judge decides to adjourn the case, he awaits the final judicial decision of the foreign court. After the decision of the foreign court, the Belgian judge is dismissed.

A foreign decision can be recognized in Belgium. However, for its application, a specific exequatur procedure is necessary.

It should be noted that this is only one of the possible problems that can arise in family law. Family reunification, marriage, marriage contract, divorce, child support, custody of minors, international child abduction and this list is not exhaustive - these are matters in which our lawyers regularly practice. Simply  call us or write to us  for qualified assistance in any family law matter.

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