18 JULY 2006 - Law favouring an evenly divided residence and housing of the child of separated parents and governing the obliged enforcement concerning the residence of the child [1]
Unauthorised translation from Dutch to English by Peter Tromp MsC (FatherCare Knowledge Centre Europe). This translation can be copied and published freely provided that all credits including translation credits are included.
The Belgian Law favouring the evenly divided housing and residence of children after parental separation was published in the Belgian Bulletin of Acts, Orders and Decrees on 4 September 2006. It came into force on 15 September 2006.
ALBERT II, King of the Belgians,
To all that are now and will hereafter be, Our Salutations.
The Chambers have adopted and We ratify which follows:
CHAPTER I. - General provision
Article 1. This law regulates a matter as meant in Article 78 of the Constitution.
CHAPTER II. - Modifications of the Civil Code
Art. 2. Article 374 of the Civil Code, modified by the law of 13 April 1995, of which the existing text will form § 1, is completed with § 2, sounding:
« § 2. In case the parents do not live together and their dispute is made pending at the court, the agreement concerning the housing and residence of the children will be homologised by the court, unless the agreement is obviously contrary with the interest of the child.
For lack of agreement, in case of joint parental legal custody and authority, the court examines on the request of at least one of the parents with primacy the possibility of fixing the housing and residence of the child in an even manner between the parents.
In case the court is of the opinion however that evenly divided residence and housing, is not the most appropriate solution, she can decide however to fix an unequally divided stay.
In any case the court will judge with a sentence explicitly covering the particular reasons, and taking into account the concrete circumstances of the matter and the interests of the children and the parents. »
Art. 3. Article 387bis of the same statute book, inserted by the law of 13 April 1995, is completed with the following articlemembers:
« Undiminished Article 1734 of the judicial statute book, the court attempts to reconcile the parties. She supplies all useful information concerning the judicial process to them, in particular concerning the usefulness to appeal to in the seventh part of the judicial statute book stipulating reconciliation and mediation. If she infers that an alignment is possible, she can order the suspension of procedings, in order to offer the possibility to the parties to be sufficiently informed about this and start up the reconciliation and mediation process. The duration of the suspension can be no longer than one month.
The court can order, even by its own direct discretion, a preceding measure to examine the demand or progress set on request or she can provisionally regulate the situation of parties for a period which she sets.
In case such a demand or progress initially is made pending at the youth court, and with the exception of agreement by all parties and the solicitor of the King, the youth court will decides on a provisional regulation. The matter can be again examined during a later meeting, on a date which has to be officially fixed in the sentence, within a period which can not exceed one year and notwithstanding a new courtsession called for on a previous date, such as is the matter in the next articlemember:
The matter remains to be registered on the bar of the youth court till the children, to whom the dispute is related, are emancipated or have reached the age of legal adulthood. In case of new elements, the matter can be again brought for the court by conclusion or by a written request to be laid down that be forwarded to the graft.
Article 730, § 2, a), of the judicial statute book does not apply on these matters. »
Art. 4. In the same statute book Article 387ter is inserted, stating:
« Article 387ter.
§ 1. In case one of the parents refuses to carry out the courts decisions concerning the housing and residence of the children or the right to personal contact, the matter can be brought again before the competent judge. Contrary to Article 569, 5, of the judicial statute book, the competent judge is the one who had previously ordered the courtdecision that is not carried out, unless the matter in the meantime was made pending at another court, in which case the demand or progress is then to be brought forward to that court.
The judge pronounces sentence with primacy above all other matters.
Except in case of squat necessity, he is at the discretion amongst others:
- perform new research measures, such as a social inquiry or an expert research;
- undertake an attempt to propitiation;
- propose to the parties to make use of Article 387bis relating to reconciliation and mediation.
He can take new decisions concerning the legal parental authority and custody or the housing and residence of the child.
Notwithstanding criminal action he can allow the party falling victim to denial of the decision meant in the first paragraph to appeal for coercive measures. He stipulates the nature of these measures and the closer rules concerning the exercise of it, taking into account the interest of the child and indicate, if he considers this necessary, the persons who are authorised to accompany the Court bailiff for the enforcement of his decision.
The judge can pronounce a penalty payment to guarantee that the decision will be observed and, in that hypothese, state that for the enforcement of the penalty payment, Article 1412 of the judicial statute book applies.
The decision is by law feasible at stock.
§ 2. This Article applies also when the rights of parties are regulated by an agreement such as has been provided in Article 1288 of the judicial statute book. In this case, and undiminished § 3, the matter is made pending at the court by means of a petition on objection.
§ 3. In case of emergency, and notwithstanding the possibility of appealing to Article 584 of the judicial statute book, authorisation can be requested by unilateral petition to appeal for coercive measures as meant in § 1. Article 1026 up to 1034 of the judicial statute book do apply. The requesting party needs to confirm the petition with all useful documentation showing the refusing party to be effectively urged to comply with his/her obligations and that she has resisted himself/herself against enforcement of the decision.
The registration of the petition is free of charge. The petition is to be added in the courts file leading to the decision which was not observed, unless the matter in the meantime was made pending at another court.
§ 4. This Article does not affect and diminish the international provisions to which Belgium is committed in the field of the international abduction of children. »
CHAPTER III. - Modifications of the judicial statute book
Art. 5. Article 1412, first paragraph, of the judicial statute book, modified by the laws of 31 March 1987 and of 14 January 1993, is completed as follows:
« 3 when the judge has applied Article 387ter, second articlemember, of the Civil Code. »
To declare this to be the law, orders that she will be kept under the countries seal and will be announced in the Belgian Bulletin of Acts, Orders and Decrees.
Given at Brussels, 18 July 2006.
ALBERT
By Royal Permission:
The Minister of Justice,
Mrs. L. ONKELINX
Sealed with the countries seal:
The Minister of Justice,
Mrs. L. ONKELINX
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[1] Parliamentary reports and notes:
Common Chamber of Members of Parliament.
Regular meetings 2004-2005. Parliamentary documents.
- Lawproposal, no. 51-1673/001 of 17 March 2005.
- Amendments, no. 51-1673/002 up to 006.
Regular meetings 2005-2006. Parliamentary documents.
- Amendments, no. 51-01673/007 up to 13.
- Report on behalf of the sub-committee, no. 51-1673/14
- Amendments, nrs. 51-1673/15 up to 17.
- Report on behalf of the commission, no. 51-1673/18.
- Text adopted by the commission, no. 51-1673/19.
- Amendments, no. 51-1673/20.
- Text adopted at plenary meeting and send over to the senate, no. 51-1673/21.
Integrated report.
- Meeting of 30 March 2006.
Senate.
Parliamentary pieces.
- Lawproposal evocated by the senate, no. 3-1645/1.
- Amendments, no. 3-1645/2 up to 3.
- Report on behalf of the commission, no. 3-1645/4.
- Text improved by the commission, no. 3-1645/5.
- Amendments, no. 31645/6.
- Decision not to amend, no. 31645/7.
Parliamentary dealings:
8 June 2006.
