Proposition 50K0094

Proposition de loi modifiant l'article 232 du Code civil et les articles 1270bis, 1309 et 1310 du Code judiciaire en ce qui concerne le divorce pour cause de séparation de fait.

General information ¶

Author

Vooruit Fred Erdman

Submission date

Sept. 9, 1999

Official page

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Status

Adopted

Requirement

Simple

Subjects

divorce

Contact form ¶

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Discussion ¶

March 16, 2000 | Plenary session (Chamber of representatives)

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Mr. Speaker, Mr. Minister, dear colleagues, the proposal we are discussing today is of great interest to many married couples but currently separated. In fact, it aims to reduce from five to two years the time required to bring a divorce action for separation of facts or when the spouse is in a state of dementia or serious imbalance, a situation referred to in Article 232 of the Civil Code. From the beginning of the 19th century until 1974, our law had known only two types of divorce: divorce by mutual consent and divorce for a determined cause, the cause being the fault of one, or even both spouses. The law of 1 July 1974 introduced a third type of divorce into the legal system, i.e. divorce due to de facto separation. This is not a divorce without fault since the person who initiates the procedure is assumed to be the faulty spouse. However, this is a third type of procedure, since the spouse says he is innocent, he may be imposed a divorce he has not requested or he may not wish. It is the situation of de facto separation or the state of dementia or imbalance of the spouse that is therefore the necessary but sufficient cause for divorce to be sought and obtained. By introducing these new provisions, the lawmaker of 1974 had, however, remained cautious since the de facto separation or the state of dementia had to last for at least ten years before the new procedure could be initiated. The minds have, of course, evolved over the past 25 years. The law of 2 December 1981 already reduced this period to five years and today we are proposing to bring it back to two years. This proposal was submitted by Mr. Erdman on September 9, 1999. In fact, it had already been deposited in the Senate during the two previous legislatures but it had never been truly debated. The Judiciary Committee held four sessions for its examination. The author explained its scope by explaining in particular that it was logical to set the deadline to two years, which is the time required from the date of marriage to introduce a divorce procedure by mutual consent. He also stressed that children are often the first victims of these de facto separations that can give rise to eternal conflicts, divorce allowing to clarify the situation. By the voice of the Minister of Justice, the government supported the proposal by pointing out that it is perfectly integrated with the government’s goal of humanizing this type of procedure. The Minister considered that the new legal provision would likely increase the number of procedures based on Article 232; this type of procedure is, indeed, currently a very minority. For 1996, the last year for which complete statistics are available, it can be found that 45% of divorces were conducted by mutual consent, 42% for determined cause and only 13% for de facto separation. A very broad consensus has emerged in the committee on the content of the proposal, the feeling being that, on the one hand, it is unnecessary to wish to prolong legally a relationship that, in fact, no longer exists and that, on the other hand, a two-year period is sufficient to be able to assess the definitive and irreparable nature of the separation. The committee, however, decided to invite two professors specialized in the subject to come and share their views. It is about mr. Van Geysel, Professor at ULB and Mr. Senaeve, teacher at KUL. Both were in favor of the proposal. During these hearings, many issues related to divorce proceedings were addressed by Commissioners. The problem of the pension after divorce for the innocent spouse, which is limited to one-third of the income of the maintenance debtor in the case of divorce for a determined cause, while this ceiling does not exist in the case of divorce on the basis of de facto separation. The illogicity of these provisions has been emphasized. Is it therefore more serious to request divorce following a de facto separation than to see it pronounced for infidelity or violence? However, it was clarified that this situation, apparently discriminatory, is currently the subject of a preliminary question submitted to the Court of Arbitration by the Brussels Court of Appeal and the opinion of the Court is expected in the coming months. Therefore, it seemed better to wait for this opinion before legislating on this point. The issue of the actual payment of alimony pensions was also raised. Currently, almost 40% of pensions would not be paid. However, various legislative proposals relating to this problem are currently under discussion before the joint committees of Justice and Social Affairs. Finally, various speakers felt that it was time to open the debate to introduce in our law the principle of divorce without fault, as it exists in Germany, England and the Netherlands. It was also discussed to reduce the required duration of divorce by mutual consent. Several amendments were introduced by Mr. Bourgeois and Coveliers on these different points. They aimed to prevent divorce pension from exceeding one-third of the maintenance debtor’s income, to reduce the time for the introduction of a mutual consent procedure and to amend the current system of imputability of separation liability in case of divorce based on Article 232. The author of the proposal, Mr. Erdman, asked not to include in his proposal, elements that were not directly related to it but should be considered in a more comprehensive reform of the divorce law. This way of doing could also delay the vote on the initial proposal. Following this intervention, the amendments were withdrawn, given that these various issues should soon be subject to a thorough examination. by Mr. Erdogan has submitted two amendments. For the sake of consistency, these amendments aim to reduce from three to two years the time required to convert a separation of bodies and property obtained by mutual consent or for a determined cause into divorce. Indeed, the separation of bodies and property constitutes a separation in fact, and it was therefore logical that the conversion into divorce could be achieved after two years, as in the cases referred to in Article 232. These amendments were adopted unanimously and are therefore incorporated into the text submitted to the House. Finally, Article 4 of the proposal specifies that this law is applicable to ongoing disputes. Although some have challenged the need for this precision, it has been ⁇ ined in the text. The whole proposal was unanimously adopted by the Justice Committee, which demonstrates, however, that it responds to a real need to adapt our legislation to the current social consciousness. Let me conclude with two comments. It is desirable that without too much delay, i.e. during this legislature, we examine the various points raised in the committee, such as the possible introduction of divorce without fault, the application of the same ceiling for all pensions after divorce and the creation of a more efficient system to ensure the effective payment of these pensions, not only between former spouses but also for children. Finally, we can observe the fairly rapid evolution of the legislation regarding divorce for de facto separation since in 25 years and three legislative texts, the deadline has been reduced from 10 to 2 years. It seems to me that we have thus reached a reasonable deadline below which it would be difficult to descend again under the penalty of removing any meaning from the legal status of marriage. The Commission therefore invites you to approve this proposal.

Mr. Speaker, first of all, I want to thank the rapporteur for his excellent report and the committee for how this has been addressed. It was a good thing that we obtained expert advice by hearing the professors Senaeve and Van Geysel who gave us the assurance that it was acted in the right way. I also thank the authors of the amendments who were so kind to understand my tip at some point and to postpone their commitment and approach to a later date. I would like to emphasize what the rapporteur has already said. The spirits mature. We are making a small step in a matter where more than ever in the context of relations between people, the victims must be found to a large extent in their children. More than ever, therefore, we must be aware of the fact that the relational difficulties that may arise between people could be addressed in a humane way without leading to climaxes, without causing long procedures and many costs. This is exactly what the rapporteur has emphasized here. There are other problems, related problems, more than ever on the agenda. So it is time to discuss the principle of innocent divorce. Finding guilt in the relationships between two people is not necessarily a solution for their future or the expansion of their future. Sometimes they go under a debt that is actually a blatant mistake of a few moments, than when they are unable to prove the guilt of the one who is eventually proclaimed the winning party. This is a debate that has been going on for a long time. The rapporteur has rightly emphasized that this form already exists abroad. One cannot simply comment on how this should be solved. However, I think the debate should be started. In the previous legislature, we revised the divorce procedure. Let us now have the courage, in the face of these human relationships in society that evolve under a modern approach, to enable modern legislation. Mr. Speaker, I would like to assume that, despite the fact that the division of powers between the chambers is different, it is this chamber that has been able to take this first step. Therefore, it should also belong to this chamber to force the debate. I take it on my own to consider how we could organize this. We must take the time to do so, provide the scientific support and at the same time hold the consultations within different social ranks to properly evaluate in which direction a solution can be found. In addition, there is a second issue that has already been highlighted by the rapporteur and is already on the agenda in the joint committees for social affairs and justice. It is about the problem of maintenance, the non-recoverability of maintenance, especially in relation to children. Mr Coveliers has recently alluded to the procedures of the Prosecutor’s Office. However, I also knew the time that it was enough to file a complaint and immediately the sword of Damocles came hanging over the head of the debtor. Today, this is no longer so important and certain complaints are undoubtedly classified as belonging to the relationship problems between people. Let us, however, be equally serious when it comes to the upbringing of children that must be assured in some way. I will then leave aside the difficulties that may arise for the partners in case of non-payment of the maintenance fee. More than ever, there is a need to seek objective elements for determining maintenance payments. We must also not fall into a system in which these obligations are ultimately transferred to the community and therefore undoubtedly left to the community. One might then be inclined to increase these amounts in court decisions, with the reasoning that the State will bear the burden and we do not have to worry about it. A rational approach is also needed. The work in both committees will ⁇ be a striking step in the right direction. I would like to thank all those who have actively contributed to the realization of this text. Together with the rapporteur, I can conclude that on the legalist level time matures the minds. I have tried to approve this text twice. Today, from the angle from which so many difficulties were made to accept this text, very marked steps are being taken in the direction I come to indicate. I would like to thank those who actively support this project.

Mr. Speaker, Mr. Minister, colleagues, allow me to thank the rapporteur for his report, as well as congratulate the initiator of the text with his initiative, because in this way we could eventually reach a new step towards the humanization of the right to divorce. Nevertheless, it is becoming increasingly aware that the right of divorce, however conceived and on which it may be based, in fact, does not prevent anyone from remaining married, from continuing to live in a relationship. The right of divorce as it is now understood goes too far from the idea that one might impose a sanction — often that sanction is the maintenance — to ensure that one would still remain married and one would not apply for divorce. We all know the results. It represents approximately 30% of the workload of the courts. How hard it would not be to say that one has too much work if 30% of the workload had been taken away. With the same number of people and with the same resources, 30% less should be achieved. There could be a lot of other tasks. Despite the fact that the misconduct of a relationship, a subjective mistake between two people, is ⁇ difficult to comprehend morally, it is a firm fact that that mistake is even more difficult to comprehend legally. Even in criminal law, it is often so difficult to establish a real mistake. The actors are men and women, but the victims are mainly children. Mr. Erdman also correctly pointed out this. Mr. Erdman’s comment on the change in the spirits is correct. The right to divorce should help people to separate, and not compel them to stay together. We have always been a requesting party. This is also why we support this proposal. This is also the reason why I withdrew the amendment, which could have led to a wider discussion. We have yet to experience the waiting period of 10 years, and it was a great victory that a divorce could be introduced on that ground. We consider the five-year period as an important step in the right direction and hope that this can be realized as soon as possible. I want to make it clear here that we want to go ahead and as quickly as possible. We want to get rid of the destructive misconception, which dates back to a period when it was apparently necessary to identify one guilty in every divorce and proclaim the other as the winner. This can no longer be done and we assume that in divorce cases there are actually only losers. We will therefore present a proposal for the reform of the divorce law, the lines of force of which are as follows: First, all existing grounds for divorce are replaced by a ground, namely the permanent disruption of the marriage. The permanent disruption can only be established by the court at the moment the parties also claim that the marriage has been disrupted, no longer asking the question of who is to blame for this disruption. Secondly, any maintenance between partners is calculated on the basis of the needs and capacity, with the aim of eliminating any economic dependence that could have arisen from the fact of the marriage between the spouses. Third, the maintenance obligation for the partner is limited in time to, for example, as in the Netherlands, a maximum of 12 years or less. In addition, objective or objectivable criteria shall be established for the determination of the maintenance allowance for minors or children still in custody. Fourth, the divorce must be able to be initiated and obtained either on a unilateral request or on a joint request. Fifth, the existing obligation to have a full prior agreement on all consequences of divorce is removed and is linked to an active role for the judge to pursue any such agreement with the parties. Sixth - at the public prosecutors, many will be very happy to hear this, given the very large workload, where the obligation to advise the public prosecutor is limited to the utmost minimum. This means that it will be limited to the matters in which the rights of children are decided. We hope that this proposal, which will be presented to all, will bring about a dialogue in a constructive way and based on these principles, in order to contribute to the elimination of a total fictitious conflict that is imposed on a very large number of people and that ultimately only troubles our society and makes a lot of people unhappy without any reason.

Mr. Speaker, first of all, I would like to congratulate the successive authors of this bill, as well as the Justice Committee for the work carried out, as it really represents a breakthrough in divorce. I would like to emphasize the advantage that this bill can present in the case of a separation. In fact, during the period of separation, the former spouses are still solidary of the debts that one or the other could contract. And the injured spouse has virtually no recourse against his former spouse. The latter can also use this element as a weapon in the context of divorce and separation. It is therefore interesting to reduce the duration from five to two years, since the risk is thus limited. The excellent report shows the subject of the debate, the extent of the problem as well as the other issues that remain pending. I would like to emphasize one of the aspects that the rapporteur highlighted, namely the issue of maintenance obligation following divorce, and more specifically the issue of payment and recovery of claims. We cannot make the economy of the debate, which is still ongoing in committees of Justice and Social Affairs. Some proposals are on the table. And I would like to draw the attention of both the government and the assembly so that this bill, which constitutes another aspect of this problem, finds a solution under this legislature, since it has already been more than 25 years since the question is raised and is the subject of debate. If we manage to solve the problem of debt recovery, we will then be directly involved in the fight against poverty, in which monoparental families, arising from divorce and assuming solely the care of the children, are plunged into. This is part of the right line of the policy of the active social state, which was proposed to us as part of the government declaration. I look forward to a lot of concrete proposals from the government and parliament.

First of all, I would like to congratulate the rapporteur and the proposer of the bill. Mr. Erdman, on behalf of my group, I have always said that we would support your proposal. It is about humanising and further liberalizing the right to divorce. We have said from the beginning that we endorse this evolution, which seems to us desirable and even inevitable. From the beginning, I have tried to include three other points in the debate. First, my objective remains to eliminate the discrimination between maintenance payments after a divorce on the basis of actual separation and after a divorce on the basis of facts. I submitted an amendment to this point, but Mr. Erdman asked to limit the debate to the subject of his bill, especially since there is currently a question pending in the arbitration court. I therefore withdrew my amendment but submitted it again in the form of a bill. I hope that this may, together with Mr. Coveliers’ proposal, give rise to a thorough debate. Secondly, after the hearing with Professor Senaeve, I submitted a bill to reduce the period for initiating a divorce on mutual consent to six months. At present, that term is still two years. The expert we have heard rightly pointed out that this would be a very concrete step towards humanization. After all, this often turns out very soon after the marriage already necessary but for the sake of the term one resort to simulations such as, among other things, fictitious findings of adultery. Otherwise, unfortunately, two years of actual separation must de facto exist. Thirdly, during the introductory discussion, I immediately proposed to extend the debate, though not within the framework of this bill, to the question of innocent divorce, divorce on the basis of lasting disruption. Mr Coveliers submitted an amendment that he later withdrew. He is now preparing a bill. Mr Coveliers, I don’t know if my group can support your bill, but I support your initiative in the sense that it is the only technique to trigger the debate. Insofar as you are willing to amend, we may be able to use this technique. However, I advocate that this debate be initiated only after extensive consultation. I think we were more or less agreed on this. There are a number of aspects that require our attention. First, should this be the only basis for divorce? I have understood that Mr. Coveliers wants to maintain sustainable disruption as the only ground. Shouldn’t we come to multiple divorce grounds, which was also defended by Professor Senaeve and other eminent lawyers? This is an interesting and necessary debate. Second, the maintenance in other countries also exists in the case of divorce on the basis of permanent disorder. Will we link the maintenance allowance to the concept of error as is still happening in other countries? Will we limit it in time or will it apply permanently? Will the maintenance allowance compensate for the social loss suffered by one of the partners, for example, by performing household duties during the period of marriage? This is one of the elements that are taken into account in other developed legal systems. Mr. Erdman, this requires an exciting and thorough debate for which I am the requesting party. This government has not made non-criminal reforms a priority, but I believe that this should not prevent Parliament from taking this path. Under your leadership, a steady stream of legislative proposals that contribute to the improvement of our law are being discussed in the Justice Committee. We are in favor of such a debate. There has been an evolution in the minds and you have said that certain groups now also support your proposal while they did not before. Per ⁇ this has to do with the fact that you submitted your proposal to the High Assembly at the time, while you now do it to the Chamber. Per ⁇ one is more willing to argue here or is it the coalition that makes the minds change? I leave this question open, others will give the answer. In conclusion, I would like to congratulate you on this bill. This is a good bill. I hope that it can count on a Chamberwide support. Nevertheless, we are and remain the requesting party for a broader debate and this can really seem to be used following the discussion of the bills submitted by Mr. Van Hoorebeke and myself, and the proposal announced by Mr. Coveliers. I hope that we can conduct this debate in a serious way after extensive consultation and discussion.

Mr. President, Mr. Erdman, of course, we will approve this bill with great conviction. I will immediately go to your fortress and that of Mr. Bourgeois, where you wonder why spirits are ripe within some factions. I think it has been a good thing to have, in the course of the 1994-1995 legislature, first undertaken the procedure, to later, for example, address this bill. The reason for this is that in the case of divorce it is no longer possible to separate in the most humane way, with mutual consent. The procedural changes of 1994-1995 and the adjustments of 1997 have always been followed well on the ground. In the course of this month, statistical data will appear in the journal Echeidungsrecht, among others, showing that 70% of marriage dissolutions occur through mutual consent. If we had put everything under one denominator, both the procedure and the divorce in essence, this would not have been the case. We are, of course, engaged in a debate about divorce underground. Mr. Coveliers, however, I think there is a certain nuance between our both vision, because I don’t believe we should help people to separate. Recent studies from the University of Antwerp show that 30% of couples who are actually divorced feel less happy after the breakup of the marriage. They also acknowledge this. We should not take a divorce for granted and therefore not go ice overnight. When a divorce becomes irrevocable, conflicts, which are now due to the law, must be sought to remove. This is not limited to the question of debt, but extends to mediation, in the assessment of maintenance, in the problem of non-paying maintenance, and so on. Mrs. Coenen, we probably do not agree on how this should be done, but I think the way this should be done is less important than the problem that mainly women do not receive the maintenance they and their children are entitled to. This, of course, implies that money must be released. This majority, to which you also belong, will have to release these resources. We are the requesting party for this. We support your question and we hope that the majority will join us in this. However, we fear that this will not be the case. In any case, we must conclude that there are too many marriage dissolutions. There are 30,000 divorces every year. We are talking about 60,000 people, who therefore have an average of another child. Every year, therefore, we reach a figure of 100 000 people who are directly confronted with this problem. This does not prevent the most traditional form of family, marriage, from being the most durable. It lasts 4 to 5 times longer than any other form of relationship. The discrimination of this form of relationship, the tax discrimination and the discrimination in the Civil Code, must cease to exist. When we touch the divorce legislation, we should not disconnect it from other forms of discrimination that married people experience. This issue should also be considered. We are asking for a broad debate. However, we point out the responsibility that arises from a relationship. We are not ashamed of that past, Mr. Cortois. Tax discrimination has been eliminated for two-thirds by the tax reforms of 1989 and 1990. We hope that this majority will keep its promises. However, there are also tax discriminations in civil law. These discriminations should also be eliminated. We are the requesting party for a debate on this issue and we will submit legislative proposals to remedy this situation. We advocate responsibility in this area, not only in marriage but also in other forms of relationships. I am talking about responsibility during and after the relationship. Hopefully there will soon be a debate on this.