Proposition 51K2341

Projet de loi réformant le divorce.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

March 15, 2006

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

maintenance obligation divorce

Voting ¶

Voted to adopt

Vooruit PS | SP Open Vld MR

Party dissidents ¶

• Pierrette Cahay-André (MR) voted to adopt.
• Pierrette Cahay-André (MR) voted to adopt.

Contact form ¶

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Discussion ¶

Feb. 14, 2007 | Plenary session (Chamber of representatives)

Full source

In the absence of a microphone, you will read your report from your bench! Necessity makes law.

I will try what it gives.

There is no problem, Mr. President.

If the translation does not go from above, I would like to ask you to publish your report there.

It will be so! We will have a comprehensive discussion on all these proposals and projects.

Mr. Speaker, Mrs. Minister, dear colleagues, the proposed reform is ⁇ important because it is likely to affect a large part of our fellow citizens. In this regard and in the preamble, I would like to not cite the figures advanced by the representative of the Minister during the consideration of this project. These are eloquent. There was less than one divorce per ten thousand inhabitants in the 19th century. There was one per two thousand inhabitants in 1960, two per a thousand in 1990 and the bar of three per a thousand was exceeded in 2003. In 2004, there were 43,326 marriages and 31,418 divorces, more or less three divorces for four marriages.

I would also like to remind you that in this matter, all the parties have submitted legislative proposals. They were attached to the bill under consideration – our President has just listed them – as well as the bills that had a connection with the matter under consideration. In this regard, I would like to refer to the written report. I will also be able to refer to the report of the Family Law Subcommittee, which reliably reports the hearings that have been conducted on this project. I think it will be read with interest by all those who are interested in the issue.

The main objective of the bill submitted to us is to limit the adverse effects of the divorce procedure on the relations between the parties. Every separation brings difficulties. It is important that these are not aggravated by procedural difficulties and sometimes sterile debates about guilt. The bill aims to consolidate the right to divorce by reducing the role of the judge in the ruling of divorce, in particular by significantly limiting the debate on responsibilities in the rupture and by bringing the different procedures closer to allowing bridges between them. However, following the hearings, it appeared desirable to maintain divorce by mutual consent as an independent procedure.

More delicate is the debate concerning the consideration of the guilt as to the consequences of divorce, ⁇ as regards maintenance. The reform opts for an extended right, since it can be opened even to the spouse who has requested and obtained divorce without fault. Exclusion will only be possible if the potential debtor proves that the applicant has committed a serious mistake, making it impossible to continue the common life.

Here too, it was considered preferable to make a distinction between the notions of serious guilt and beating and injury. If, in the case of a serious mistake, the judge retains its discretion to decide whether one of the two parties should be excluded from the right to maintenance, in the second case, the person who would be found guilty of beating and injury would be excluded of office from the right to pension, without the judge’s discretion.

Thus, if the reform allows the judge to pronounce the divorce without fault, it has appeared premature to exclude any reference to the fault in terms of financial consequences. The sense of fairness may be struck if the spouse who caused the breakup nevertheless receives financial assistance. The principle of liability remains therefore, even though it will no longer be the claimant in divorce to prove the fault but the potential debtor to establish it in the head of the claimant.

The right to pension is limited in time. Furthermore, the initial project allowed the judge – the reference time was the lifetime of the marriage – to modulate that duration according to the economic choices made by the parties during the life together. It will be seen that following amendments adopted in the committee, this faculty can only be exercised after the expiry of the period initially fixed, namely the duration of the marriage and in case of exceptional circumstances.

The bill also contains a number of procedural advances to accelerate the procedure and collect data in the context of divorce proceedings. Particular attention is paid to mediation. The judge shall provide the parties with any relevant information on this subject. It may suspend the decision, for a maximum of one month, to allow the parties to start the process.

As for the means of appeal, it is proposed to remove the right of appeal when a judgment decrees divorce. However, it will be seen that following an amendment, this possibility will be reintroduced.

During the general discussion, we can try to summarize the positions taken in the following way.

The provision which has ⁇ been the object of the most observations is undoubtedly that concerning what is used to be called the causes of divorce. Many speakers emphasized the central role of this provision. There will be only one cause of divorce, the irreparable disunion, the proof of the existence of which may be facilitated if the conditions elaborated by the presumptions are established.

Some colleagues regretted that the project did not resolutely opt for a divorce without fault. For them, it is appropriate to draw up a single cause of divorce, the irreparable separation appreciable by the judge.

On the other hand, some colleagues have pledged for the maintenance of a divorce for fault. In fact, they argue that non-compliance with obligations arising from marriage must be punishable and that the expression of the parties’ suffering must be taken into account.

Other members have opted for the introduction of other causes of divorce such as the accepted divorce procedure that exists in French law in order to better meet the needs of the citizen and thus take into account the reality of the relationships that animate a couple in crisis.

Finally, in general, it appeared desirable to define what was meant by “irreparable disunion”. Thus, disunion is irreparable when it makes reasonably impossible the continuation of the common life and the resumption of it between the spouses.

Another point that drew attention was the consequences of divorce and in particular the debate on maintenance after divorce. The question of maintenance has been the subject of several considerations on the part of all Commissioners. Inevitably, the debate on taking account of guilt rebounded when we discussed provisions on maintenance.

Some speakers are of the opinion that it should be sought to limit maintenance pensions as far as possible by granting maintenance to the only spouse in need. Others pointed out that in particular circumstances, it was intolerable that the spouse guilty of a serious misconduct could benefit from an alimony. Another objection was raised regarding the duration of the maintenance pension. As I said earlier, an amendment was adopted to amend paragraph 4 of Article 301 of the draft in order to allow the judge to extend the period of maintenance only at the end of the first fixed period, namely the duration of marriage when exceptional circumstances exist and the creditor is in need. There were also numerous discussions on whether the creditor’s remarriage or legal cohabitation automatically ended the maintenance pension. Eventually it was decided that yes.

Furthermore, several members pointed out the need to settle another spinal point in conflicting divorces, namely liquidation and sharing. During the discussion, an amendment to clarify the mechanism for the delegation of amounts in the event of debtor default was deposited and adopted.

Finally, transitional provisions have been provided to clarify that for the application of the provisions provided for in Article 229, §§ 2 and 3, namely the de facto separation of a period of one year, the period of separation prior to the entry into force of this project shall be taken into account in the calculation of that one-year period.

Similarly, the amendment regulates the duration of the maintenance allowance for divorces that have been awarded on the basis of the current law.

In conclusion, the bill, as amended, was adopted by eleven votes for and four votes against.

(Unhearded intervention due to a technical problem)

The [...]

Is there a problem?

There is a micro problem on the three floors. The [...]

This project has been the subject of long discussions, first in the Family Committee and then in the Justice Committee. I must admit that these discussions were very interesting and enriching. I was ⁇ pleased to discuss this project even though, in the end, it wasn’t the one I would have desired. I wanted to emphasize this because too often, it is only ⁇ when the debate does not take place or when it is too hasty. In this case, it was the opposite and I can only welcome the discussions we conducted on the substance.

Additionally, I would like to emphasize that although, in the end, the text is not what I would have desired, there have been developments, advances and text improvements. I think in particular of the notion of "state of need", which is a notion that has evolved within the framework of the granting of maintenance. In the original text, only the person in need could benefit from an alimentary pension. Today, other criteria have come to add to that of the state of need.

Mr. Wathelet, I am sorry that there are problems with the microphone. There is no translation either. by Wathelet?

The words of mr. Wathelet makes a lot of echoes, I’m told!

I know that!

I could put myself in the middle of the hallway so that everyone can hear me.

This will not happen either!

I could do it, but in this case, my words will not be included in the report.

I will try to talk away from the microphone. I am sorry for translators who have to work in difficult conditions.

Mr. Wathelet, would you like to take the place of Mrs. Milquet?

I don’t think she will be strict with me. Apparently, it is even worse!

If this is really impossible, I propose to suspend the session for a few minutes to allow the technical service to repair what the annoyance of years seems to have caused to the installation.

I’m relatively angry; generally, we test the devices before we start. I will inquire about what happened.

I will interrupt the session for technical reasons until 15.15.

I told the technical service that if my microphone didn’t work when the session resumed, he would hear another language!

I will return the word to Mr. Wathelet, as part of the general discussion of this project.

I hope I do not have to repeat what I have already said.

Bis repetita placent.

I am chained. This was the shortest part taking back the positive points. I will follow it and close it soon.

The notion of state of need is an element that has evolved. This notion, as I have emphasized many times in the committee, remains relatively blurred, simply because it is new, that it has been “softened” and modified with additional references, in particular to income differences, to the choices of spouses during the life together. The concept of a state of need has thus evolved a little and has been refined by other criteria now mentioned in paragraph 3 of Article 301, which was not present at the outset. We would have wanted a different system, but I will return to it.

A second positive element is that, in the original project, mutual consent could be the subject of a “partial” mutual consent and leave other aspects in a more conflicting framework or that would require more debate. This was a problem for us. Why Why ? There was no more incentive in the head of people who wanted to divorce to go to the end of the process. When they started a divorce by mutual consent, there must be not this obligation – one is never obliged to make an agreement and one party can never force the other to reach an agreement – but this attempt to find an agreement on all the elements to finish this process. This is the choice that was made by the commission and I look forward to it: this is a second positive evolution of the text.

A third element, not entirely positive because it demonstrates the ambiguity and the unpleasant nature of the project: the serious fault – allegedly removed, at least in the texts, as regards the introduction of the divorce procedure – comes back when it comes to maintenance. A person who has committed a serious misconduct cannot be entitled to an alimentary pension. This is somewhat the opposite reasoning of what is happening today: the person who has committed a serious misconduct may not receive alimony; the judge could however decide to grant it, even in the event of a serious misconduct. Only in cases where guilt has been proven in a judgment passed in force of thing judged, where a person is declared guilty of certain articles of the Criminal Code; in such cases, an alimony can not be granted.

Once again, the notion of "fault", removed as part of the introductory modes of a divorce application, comes back through the window in the context of the debate on maintenance, but not in a timely way: we would have desired a different system.

The fourth positive element in the framework of this text is that it was necessary to change, anyone can say. We had submitted a bill to change the divorce procedure. You can agree on divorcing but not knowing who will keep the house, how to manage the accommodation of children, what the amount of contributions will be paid. One may agree that one no longer wants to live together, but one may very well not agree on these issues, though important, but which are not central as such.

There was a need to change and I look forward to these discussions in the committee. Even if the outcome is not what we would have desired, it is quite positive. Why Why ? Because, in the old system, the fact that a fault had to be found was aberrant! We had to find a fault and when there was no fault, we invented it. Even worse, it was assumed. Indeed, when the persons agreed on divorce but did not agree on mutual consent, they were told that it would be necessary to presume a fault in the head of the person who initiates the procedure, that it would be necessary to pretend to replicate the fault on one another and share it with one another. It was indeed aberrant! Not only did this no longer correspond to the reality or to the current social life, but it brought no more added value, no more improvement to the divorce procedure. So we had to change!

The problem is that we have moved from “all at fault” to “no more at fault”. That is why we had proposed a medium path, I dare call it this way, an alternative path that I will allow myself to remind you.

We wanted the mutual consent to be ⁇ ined. Yes, mutual consent works. It even works well: between 70 and 80% of divorces find a solution within the framework of mutual consent. This is a good thing because not only does this mean that there is no judicial aspect, but it means above all that people have been able to agree, have been able to talk, have been able to settle everything amicably.

Mutual consent must be ⁇ ined. The text leaves it a specific character, which I am delighted with. What may seem strange in terms of mutual consent is that there was a two-year deadline earlier, which may have seemed long and which was reduced to one year. There is no longer any deadline at all. I hope that in practice this will not be a problem. You can now get married on a Saturday and from Monday, start a divorce procedure by mutual consent. Hopefully there will be no consequences for white marriages. I hope not. It is true that other arrangements have been taken to prevent this from happening. On this particular point, we express a reluctance but not on mutual consent.

While ⁇ ining mutual consent, it was necessary to find a procedure by which, even if there were conflicts, even if there was this debate, one could avoid guilt in the proceedings brought before a court of first instance. This amounted to asking the judge to agree on the necessity of divorce while asking him to decide on the consequences of divorce and on which there are disagreements. This is the procedure we have submitted. Even though I think it is best for people to agree on divorce and as much as possible on all the consequences, it must be acknowledged that in more than one case, this is not the way it happens. In some cases, even if the word "fault" is not the most appropriate, there is a definite cause of divorce in the head of the person who makes a claim.

This can be strikes and injuries, as envisaged in the new project for the serious fault in the head of the maintenance pension. But it can be of a completely different order: insults, moral violence, the absence of contribution to household, the total abandonment of children, the refusal to contribute to their education, to their supervision or maintenance. Sometimes it is also this cause that justifies the introduction of a divorce procedure. We believe that in such cases it is better to allow the introduction of this divorce procedure on this basis. If there is a conflict, if there are discussions to manage, it must be possible to do so in a court. In my opinion, this is better than doing it on the doorstep, at home, while the child moves from one place to another due to an alternate guard or an "egalitarian" guard.

Let us therefore make sure that this conflict is cleared as soon as possible and if there is a means, as soon as the divorce procedure is initiated. I think this is the best way to proceed.

The danger is as follows: since this discussion could not take place at the time of the introduction of the divorce application, it is likely to take place later, at the time of the maintenance. One of the parties may refuse to pay an alimentary allowance by invoking the serious fault committed by the other. It is therefore dangerous to postpone the debate, to crystallize it, and to amplify the problem. This is indeed my fear.

Then, with regard to the determined cause, most of the timeframes are significantly shortened. Allow me a cartoon: a couple marries; the next day, a divorce procedure is introduced for various reasons; the magistrate - if he has the intimate conviction of it - quickly pronounces the divorce. The other paragraphs relating to the manner of introduction of divorce relate to the periods of three and six months, whether the application is submitted unilaterally or jointly, even if in the second case, the period can be extended. In any case, when a person who has initiated a legal proceedings returns to the judge six months later, simply confirming his will to divorce, the intimate conviction of the magistrate does not even play anymore; the persons are purely and simply divorced.

Now, and especially when the spouses are not agreed on the very fact of divorce and especially when there is a determined cause for divorce, one realizes that the latter is not something that is decided on a head and that the parties often need to resource each other, to take a minimum of retreat or even to find themselves simply. It is not uncommon for divorce candidates to talk to each other, discover new elements and normalize their situation, so that they finally decide to continue their life together. Sometimes spouses need a time of reflection. That is why I am afraid that this project will no longer allow this retreat that serves to pacify conjugal conflicts.

In the press, we were able to read the word "repudiation" in reference to the reduction of deadlines and the speed of procedures introduced in the project. This term strikes and may seem excessive in this case. At the same time, he has this advantage of shocking and interpelating. In any case, the risk is that a party may either resort to deadlines or persuade the magistrate by means of intimate conviction, in order to abandon its marital obligations by leaving aside the weakest part, dismissing any responsibility.

Another negative element I think is the provisions on maintenance pensions.

I will not return to the question of serious fault; I have mentioned it just recently. However, the way the debate was situated seems to me somewhat special or at least original. Indeed, the person who is likely to receive an alimentary pension may not be entitled to it if he has committed a serious misconduct, as he may also be entitled to it.

A number of examples can be shocking. Thus, let us take the example of a lady who, throughout her life, has not worked, has chosen to live a common life with her husband and has no income. The gentleman insults her, harasses her morally, and then leaves her by deciding not to take care of the children anymore. Although not having a job, this lady may not benefit from an alimentary pension, simply because she does not meet the criterion of sufficient state of need. However, it was not she who committed the grave mistake. It is the person who should pay the maintenance pension that committed it. The element of grave fault does not interfere in the reasoning that the magistrate must have.

With this example, I try to demonstrate that reasoning is reversed. The serious fault is assessed only in the head of the person who can or cannot – it is the judge who must decide on the basis of his intimate conviction and the elements of the case – to benefit from an alimentary pension.

I would like to give a second example. She is very wealthy; she earns her life very well. She married a ⁇ faint man, who decided to do nothing in life. And this gentleman decides, one day, to morally harass his wife, to adopt a behavior that I will qualify as indecent towards her. This man, who is absolutely not recommendable, decides to leave his wife, not to contribute to household burdens and especially to the maintenance of children. However, he could very well benefit from an alimentary pension, unless a judge considers that he has committed a serious mistake. However, it may also consider that a serious mistake has not been committed.

( ... ) : [...]

No, I am sorry for it! If the gentleman is the person responsible for the divorce, that the fault is in his head... I remind you that the word "fault" may not be the appropriate term.

The [...]

The reasoning is the reverse.

The [...]

We had this discussion in the committee.

Today, there is an assessment of the serious fault in the head of the one who must pay the maintenance pension. In this case, the element of serious fault is present only in the head of the one who must receive it. In the situation I have just mentioned, the gentleman — I could have taken a lady — who has had an indecent behavior that could or may not fall under the grave fault — it is up to the plea to decide it ...

The [...]

Did I speak of someone other than the judge?

You just said, “It’s up to the plaintiff to decide!”

Sorry, if I like lawyers so much, it is not least that this matter falls within the competence of the magistrates! Sorry for the lapsus.

I return to the above case. Either the judge may estimate that there is no serious fault; in this matter, there is absolutely no discretion in his head. If the person is in need, he must be able to benefit from the maintenance pension. Either the judge considers that there is a serious fault, but that the person must still be able to benefit from an alimony. This case poses a real problem in terms of the distribution of alimony pensions.

In the current system, if you are not responsible for any fault, if the divorce is pronounced against the other, you will never have to pay an alimony. It is very clear! I think the proposed development is not going in the right direction.

In addition, we can talk about transitional measures in the area of maintenance pensions. I got to know in the press this morning of an analysis. From a political point of view, it was extremely well played, I have to admit it! It consists of presenting the two positions that were drawn up in the committee.

The first is to immediately amend all existing provisions. Thus, a person who has previously received an alimentary pension can no longer benefit from it at all. The counters are put back to zero. This proposal was presented in the committee, but it was rightly withdrawn, I think.

The second is to change nothing, since these are judgments that have been made in the force of a thing judged. Once a judge’s decision has been made, it can no longer be touched. In addition, these persons rely on the maintenance pension granted to them by the magistrate.

The author of the article said that a compromise was found to keep the church in the middle of the village by choosing immediate application of the law but only for the duration of the marriage, even though the divorce has been pronounced for several years.

But if this measure is presented as a compromise, it does not preclude that decisions that have been taken in force of a judged thing are truly challenged. Some people hold a judgment or judgment that grants them maintenance. There is no deadline! This matter is not determined in time. When the magistrates granted them this maintenance, they did so for the rest of their lives, except for the reintroduction of a procedure for acting amendments intervened or circumstances independent of the will intervened in the head of both parties. These maintenance pensions can be effectively modified, provided that a procedure is introduced.

Today, what about it? The speech is modified. If people counted on their alimony during their lifetime, it is now over! Fortunately, they are told when. Because they have to know it! Certainly, there are examples for which this is ⁇ shocking, especially for people who have benefited from it for many years and who will find themselves impoverished at an age at which it is ⁇ difficult to find a job, to reintegrate into the professional circuit, to lead a new professional life or to consider new prospects.

For this reason, we have provided for exceptional circumstances to increase the number of years for which the maintenance creditor can continue to benefit from it.

Furthermore, it will be necessary to determine what these exceptional circumstances are and develop a new case-law. If the terms have been changed, it is to no longer have the one that was in force in the past.

Furthermore, I am pleased that this mitigation has been included in the text. You will remember that in the commission, I even insisted on the interpretation of this article to be sure that this easing of the duration of marriage, which is a fixed duration, can be applied. The text might not have been clear. Fortunately, thanks to the accuracy in the terms of the report, we are confident that these exceptional circumstances will be applicable.

However, I would like to point out that this decision will be made at the end of the marriage period. The person will therefore be in total uncertainty during the duration of the marriage – postponed in matters of maintenance – as to the possibility of benefiting from these exceptional circumstances. At the end of the period, he will have to reintroduce a request to invoke these exceptional circumstances and to extend the maintenance. This will require active action on the part of the person who sees his alimony end within a certain period of time. This will force him to introduce a procedure to be able to extend this pension over time and, in the meantime, put him in a situation of significant legal uncertainty.

The additional problem with alimentary pensions is that it always affects the most precarious person, whether in terms of deadlines, assessment criteria or in terms of serious fault which is no longer appreciated but in the head of the defendant, of the recipient of the alimentary pension. These people are mainly women.

Mr. Wathelet, you are taken by your subject, but the 30 minutes are already over. You are 32 minutes away.

Mr. President, I cannot say that Mr. Wathelet is abusing his time. He says meaningful things. He says things that are worthwhile. You may not agree, but I do not think that at the moment no one is hindered by Mr. Wathelet’s statement.

I appreciate Mr. Wathelet just like you. Sometimes I even notice that.

Mr. Wathelet, this is no longer love; it is rage!

This is an expert opinion!

For you or between us?

for you !

Mr. Van Parys, it would be rage between us! I do not know what that means. We may both become dangerous characters, and that worries me!

Certainly for one of them!

Mr. Speaker, I can hold for half an hour, and I’m sorry because I didn’t want to be so long. However, I must confess that I still have many years to perform as a parliamentary to succeed in speaking as long as Mr. by Van Parys. I admit that I am still an amateur, because I don’t have his experience!

I could speak before you, if you wish.

I’ll finish it soon, don’t worry. The problem is that often it is the person in the most precarious situation who finds himself in trouble for the reasons I have stated: maintenance, divorce and divorce.

They are often women. It is not a coincidence that, today, most women’s associations scream and tell us that with this text, one touches the most precarious person in the context of marriage; women will be placed – overall, it is true – in a more delicate position in the context of these divorce procedures, the determination of the alimony and the duration during which these alimony will be given.

I will conclude by reminding a small "marotta", as they say on the side of Verviers. This issue is ⁇ important to me, the family court. I talked about this during the discussions. Everyone we heard spoke of the need for the family court. We had seen the establishment of the Family Court in your General Policy Statement in 2003.

The [...]

First of all, we need to make budgets. We meet on Friday.

Mr. Minister, there is a bill on the family court and I would accept that we discuss it for two days at Grobbendonk, after having held the hearings the day before. We can start from the text we have made. It would be a good idea to recall the interest and indispensability of this family court, the overall component that this court could have in terms of added value at the level of the defendants, the coherence of jurisprudence, judicial decisions and the understanding of the judicial world, especially in family matters. The family court would really bring the more that is absolutely needed today in family matters.

In conclusion, I can say that I welcome the debate that we have had and the developments that it has allowed on the text, however not sufficient as regards the determined cause, the maintenance pension, the time limitation of it and the creation of a family court.

These are all the reasons, Mrs. Minister, that will not allow us to support the text tomorrow at the vote.

I was looking for Mr. Swennen but Mr. Schoofs, if you want to speak now in the general discussion, this can. You know that languages alternate. Mr. Schoofs, can this be for you? I will then give the word to Mr. Swennen.

Mr. Speaker, Mrs. Minister, colleagues, it is not often that when discussing a text, we have to judge and vote on something that fundamentally differs from the original text. Was it not the intention to introduce the innocent divorce? Today, however, we must conclude that the innocent divorce is not introduced at all. In some ways, we can be happy about it. In any case, we are not upset.

Second, it was intended to abolish the appeal. That is a rather revolutionary rule, but apparently the majority at the last moment decided differently because there was division over it.

Third, divorce by mutual consent would normally be housed in the concept of irreparable disorder, but – fortunately I would say – this is not the case.

Finally, the least sought-after partner would receive an alimentation, always and regardless of whether there was a guilt or not. This goal may have been more or less achieved. We could possibly add that.

Colleagues, however, one has not touched on the first, second and third case that I have listed – the innocent divorce, the appeal and the accommodation of the divorce with mutual consent in the irreparable disruption. I could be happy about that, but I am not. If I look at this bill and follow the line of eight years of purple dresses that the opposition in Parliament must have passed, it ends up in the top three. And believe me, there is heavy competition in that area.

First, as regards the innocent divorce, the debt divorce does indeed continue to exist, though weakened. It is no longer literally included in the text. It is also only the third reason for divorce that remains preserved, but then in the small letters of the law, and as I said, not literally.

We have always been in favor of debt divorce, let there be no misunderstanding about it. Guilt is a moral given. It is an element of our consciousness that keeps us separate from the primary, that keeps us separate from the animal.

When a break between two partners occurs, it is the result of a mistake. The irreparable disorder is only a consequence of that error. If we consider marriage only as a contract – it finds its origin in the contract, a right – then it is the judge who can determine which of the two parties is wrong or that both parties are wrong, and that therefore the breach has come to pass. The judge closes the error and then decides.

But from now on, as regards marriage law, one fundamentally deviates from marriage as being primarily a contract, as belonging to contractual law. It is no longer the break between partners, nor the violation of obligations as such, which leads to the end of a marriage. It is also no longer really the judge who has to establish the error, no, he assumes the lasting disruption.

The durability of the marriage may be less important for purple than the durability of the disruption, because that was the terminological error first made, namely not “permanent disruption” but a “irreparable disruption”. The last term is better. The concept of “sustainable disturbance” has already had to abandon purple because there is no longer a sustainable character, because partners can separate from the real already after three months on the basis of the so-called irreversibility. As durable will, in most cases, those disturbances also not be.

No, where does one end? One ends with the unilateral termination of the marriage, after one year, even if the partner himself is in error. The presumption of guilt no longer counts when the partners have actually been separated for one year. In the current legislation – which will now change – the actual divorce of two years is included and there is a presumption of guilt in the head of the person who wants to terminate the marriage. This is no longer the case. We are now ending with the unilateral resignation, in fact.

What human consequences does this have? The partner who remains behind – this is also concerned by the Flemish Belang – often remains defenseless behind, humiliated, insulted, and sometimes haveless. The one who is deceived, the one who is left behind, is effectively left without weapons. The attack weapons are entirely in the hands of those who want to separate from the real. The one who becomes the victim of the divorce will also feel the victim. I will not speak boutades here as if we are dealing with a disobedience – among others some feminists on the French-speaking side say that this looks like a disobedience. This is not a disorder, let us be clear about it. But the partner who stays behind will often feel dismissed in this arrangement. There will no longer be a purification process. Divorce is no longer a process that both partners can process together before a court. No, the partner who is left behind will indeed very often feel stuck, feel thrown out. The Flemish Interest is very difficult to deal with.

We are not alone with this opinion. I refer to Professor Renchon who talks about protecting the family through marriage. Well, that protection will now in many cases – with the exception of divorce with mutual consent – in Flanders at least in 20% of cases, lead to the loss of the protection of the family through marriage.

Children are the victims of this. Colleagues, I remind you that during the discussion there was almost no talk about the children. After all, it is the marriage that has a socializing, educational effect for the children. This is the role of marriage within the family for the children. Nothing was said about this during the discussion.

One comes now – I refer to Professor Renchon – to a kind of dgv, a divorce à grande vitesse. He does not use these words, but I can deduce it from his text. We know the TGV, the train at great speed. Now it can also be separated in fast train shipping. In many cases, there is a partner who is left behind helpless and helpless. Professor Renchon miraculously evokes in his text the question of protecting the family that is now completely abandoned. Marriage is broken down in this area. I quote the words of Professor Renchon, no matter how loud they may sound to the majority. They should be reflected in this debate. How does Professor Renchon call it in those cases where this law must provide a solution that will soon lead to a divorce?

“A such divorce could constitute, in a large number of situations, a true human catastrophe.”

He continued: “A such project is not in accordance with the ideals of justice and the respect of the dignity of families.”

This is what Professor Renchon says, who is known in the French-speaking world as an authority in the field of family law. We have heard him many times in the committee and it remains a pleasure to listen to this man.

The marriage will no longer be a set of rights and duties in cases where it is broken almost untimely. It is no longer an institution for the protection of the family, it is no longer an instrument for the ordering of society, and it is no longer a cornerstone of our civilization. The marriage is badly damaged. It’s just another contract that can be cancelled by the one who can withdraw the fastest. It is the most negligent and the most cynical party that in some cases – I do not say in all cases – will be rewarded provided a little bit of patience.

All attack weapons are for those who want to separate, and far too little for those who still need a process of purification and processing. He no longer finds it before the court and no longer has any means of defence.

What will this result? The hostilities will only begin when the divorce is a fact. Only then will weapons be used. What will those weapons be? That will be the property and the house council. I am afraid that these will also be the children. I am concerned about this. That is the essence of the whole story of those 20% that do not fall under an EOT in Flanders and a little more in Wallonia.

The mandatory mediation has also not been addressed. The Flemish Children’s Rights Commissioner complains about this, and rightly. One can now more or less terminate the marriage like a rental contract. There is a rental agreement 3-6-9 and now one has a divorce 90-180-360.

A chance is missed. If, then, one wants to make improvements to divorce, if one wants to help the fighting separation from the world, then it will not be so. There will be problems in the settlement and distribution of marital assets and in the arrangement relating to the children. These are the weak points of this legislation.

They wanted to abolish the Higher Appeal. Fortunately, this did not happen. After all, there can still be a purifying effect when someone has the time to process, to try to appeal against something that will be quite meaningless by this legislation. I understand that too.

Initially, it was written in the legislation that the judge authorized divorce. The parties had to ensure that the divorce was finally settled through the civil stand official. One – in my opinion – logical consequence of this is that the judge decides the divorce. I can find myself in that.

In this case, when a certain period has expired, the court can simply confirm the divorce. It is in fact a divorce by declaration. There is not even a divorce. The court must only determine that partners have ceased to live together for a certain period of time. He should not examine what the grounds are. If a party says that he has not been with his partner for a certain period of time, the divorce is a fact and the judge must address it.

Fortunately, a catastrophe has been avoided by the fact that the EOT – divorce with mutual consent – is not included in the concept of irreparable disruption. However, we must remain cautious. Even in the track of the partial accords that one can conclude, the irreparable disturbance sits in again. If, after a certain period of time, the parties no longer agree, or if they no longer wish to respect the agreements and are not fully separated from the real, conflicts may re-enter and they may again become involved in a dispute with all consequences.

Finally, I come to the fourth amendment that was intended to provide income to the least-divided party. At first glance we might find ourselves in it, but what do we see? The concept of guilt returns, but in a different form. A person who has committed a serious mistake can no longer claim maintenance. It would still be lacking. This is indeed the minimum minimum. For the rest, I think we will again face legal uncertainty and arbitrariness, because it is the serious mistake that counts in this case. I wonder what the serious mistake is. The judiciary will have to judge this all over again. Some judges will maintain the current jurisprudence. Others will probably interpret this concept much stricter. I think that in some cases it will also go against the general sense of law. The citizen, the legal subordinate, must now adapt to an entirely new fact concerning divorce and the provision of maintenance in the divorce law.

Among other things, I follow what Mr. Wathelet said about this. I will not repeat the technical and legal way in which he has deepened this, but he is right in that. The principle that the duration of the maintenance is limited to the duration of the marriage could be called a good principle in itself, the fact that there are exceptions to it too, but the question is then why one completely reverses the concept of debt. I honestly do not understand that. Anyone who commits a common mistake – to whom the dissolution of the marriage can in fact be attributed – which in the past led to the dissolution of the marriage and that one could no longer obtain maintenance, would now still be entitled to maintenance because he has not committed a serious mistake. So it is a kind of income redistribution, one might say.

What has been added at the last moment? The fact that the need plays a role in this matter. This is a step too far for us. Necessity is not the only thing a partner must be able to demonstrate in order to have the right to live a human life after a divorce, often after so many years of marriage. For us, marriage is more than that one contract. For us, marriage is an institution that people choose, usually for a lifetime. We also understand that divorce can be addressed, but when one partner unwittingly becomes the victim of a divorce, we believe that that partner should in principle be entitled to a lifetime benefit, with exceptions of course.

The majority has now made the rule the exception and the exception the rule.

Mr. Speaker, my colleagues, I am going to make decisions slowly. Should we call the arrangement here presented the organ point of an eight-year evolution of purple, which has continually put the traditional norms and values – which we want to defend with heart and soul and with hand and tooth – on the slope?

I can refer to same-sex marriage, holebi adoption and the like. I had already said that this purple dress is among the top three of all that we have seen pass through in the past eight years in Parliament. Paars here indeed signs again for a typical May ’68 concept. The individual freedom and the sacred right of the individual prevail. The sense of responsibility should deviate from the own grills and the often momentary well-being. Purple causes the undermining of the family, as the cornerstone of society, and the marriage. I refer again to what I said, together with Professor Renchon. It leads to associal and inhumane states. We are not alone with the analysis of the purple view of marriage, or what should be followed.

My decision is hard and short: the divorce, which was originally intended to fight with the bill – which was in the intention of purple – will continue to exist. I think it will only get worse and that the separation will be fought even more at the sharp of the cut between the partners. That is my vision. I don’t have a glass ball, but I think the battles will continue. I can conclude the assessment of the new Divorce Act with a widely heard sentence in court rulings: the plea fails in law.

I hope that this bill will continue to spread somewhere in parliamentary reading. It will have to happen in the Senate, for the last calamity that purple will cause in the field of marriage and family will also be the greatest calamity. We deeply regret this and will vote against.

Ms. Deom has the word and then colleague Swennen.

Mr. Speaker, Mrs. Minister, dear colleagues, the bill we are examining today is ⁇ one of the most ambitious that Parliament has had to discuss in this legislature. Indeed, already in 2000, many experts had called for a comprehensive divorce reform.

Divorce law is ⁇ one of the subjects that has undergone the most changes since the development of the Civil Code. We all know that, of course, it is the social evolution that is at the basis of all these changes. So far, the legislator has worked in sequence, without a real overview of the legal problem of the dissolution of marriage by divorce. Today, while taking into account this social evolution, one of the great merits of the project is to present a comprehensive and consistent reform of the divorce law.

It must be noted that, despite the numerous reforms: 1974 – year in which the divorce for de facto separation was introduced for more than ten years, with a presumption for fault for the applicant spouse – 1975, 1976, 1982, 1989, 1990, 1995, 1999 and finally 2000 which reduced this period from ten years to two years of de facto separation, nevertheless, none fully fulfilled its objectives or produced the expected effects. The restrictive laws on divorce did not prevent the multiplication of separations. While in 1830 there were four shares for the whole of Belgium, today there are three divorces for four marriages.

Current legislation is based on the notion of guilt; in fact, what choice is available to spouses who want to divorce? It has already been reminded in this tribune: either one chooses mutual consent with the obligation to agree on everything in the smallest details, which is not always obvious; or one is obliged to choose divorce for a determined cause where the search for the fault of the other becomes the fundamental and central element of the procedure.

This current legislation, based mainly on the notion of guilt, which is commonly called "divorce sanction", is probably outdated.

Overcome, because the judge’s mission now leads him, in view of this search for guilt, to interfere in the private life of the couple in an attempt to unmelt the shell. It is extremely difficult for a judge, whatever he is, to clearly determine the responsibilities in the dissolution of a couple’s marital life.

Exceeded then, because the fact of ⁇ ining this "divorce sanction" often leads to concrete difficulties, such as the obligation to remain married as long as the period of de facto separation, namely two years currently, has not expired.

In my opinion, although it has been stressed that the project did not completely evacuate – and this is a good thing – the question of fault but moved the moment of its discussion, this move is important precisely to allow the pronounced and cancel this obligation to remain married. Numerous testimonies show that women remain with their husbands and do not choose de facto separation because, by choosing this solution, they would be presumed guilty and would suffer the consequences during the trial. Therefore, removing the notion of guilt at the time of the divorce is more a step forward than a step back in the protection and humanization of the divorce procedure.

Overlooked, the current procedure, because the question of the fault in the breakup can only poison the debate in general, in particular the one concerning the situation of children.

Generally speaking, it has been observed that the evolution of society is linked to a multitude of factors, including the prolongation of life expectancy, the decrease in religious reference, the change in the status of women. In this context, societal developments require the legislator to develop reforms to ease the rigour of the original and current provisions on divorce. It is therefore important that this institution be adapted to the evolution of society.

It is also clear that the fact of having to stay or not in the marriage bonds essentially refers to the problem of individual responsibility, but it is of course that a balance must be found between autonomy and responsibility. In the face of this situation, the role of the legislator is not to position itself as an objector of conscience, to impose such a model or such an ideal of the representation of the couple; rather, the legislator has the task of accompanying a social evolution by ⁇ ining a balance between the parties present and being ⁇ attentive to the interests of the weaker part; I think especially of children who often experience painfully separation.

Outside of the children, in this context and without doing primary feminism but rather because it is still and always a reality, I also think of the situation of the wife who, in the vast majority of cases and in the most vulnerable populations, grants more personal sacrifices throughout the life of a couple. We still have too often testimonies that divorce procedures are experienced as traumatizing or guilty. The search for guilt makes procedures eternal and conflicts arise or persist in other areas such as childcare, alimony and the sharing of property.

In the face of this finding, it is necessary to introduce a procedure which, in our view, will be more humane, faster to avoid the multiplication of conflicts and guaranteeing greater legal certainty while respecting the interests in question. It is clear that the length of the proceedings causes serious disadvantages to the moral and material security of spouses. For example, the occurrence during the proceedings of an unlawful birth forces spouses to take actions that would not be imposed if the divorce proceedings could have taken place quickly, although we have already addressed this disadvantage in the bill reforming the proceedings of filiation.

In addition, the procedure often turns out to be traumatic for children who see their father and mother tear apart by permanently compromising parental relationships after divorce.

All the grievances that I have just mentioned and which are those that are brought to the current law have been heard many times. It is primarily to all these complaints that the bill intends to answer. The disappearance of the fault is a central element of the project under discussion whose principle objective is to humanize divorce procedures while ensuring protection to the most vulnerable parties due to this break. Whether you like it or not, divorce is a social phenomenon to which it is no longer desirable to provide an almost exclusively repressive and guilty response.

This is the end of this mesquin attitude that it is obligatory to designate a culprit for the failure of the couple. However, while it is likely that the failure of the couple is rarely due to one of the two spouses, there is a certainty: both suffer from this breakup. Those who suffer the most are the children. This is also the end of this over-year rule according to which the spouse applying for divorce – on the basis of Article 232, that is, of a de facto separation of more than two years reduced to one year in the project we are examining – is presumed guilty.

Let me be well understood: this finding must not lead the legislator to an idealised view of divorce, to a divorce that some call the "Kleenex divorce". Contrary to what some people claim, shutdowns are provided by the project. The fact of postponing the discussion on the fault is, in my opinion, also a guarantee. The plan is not intended to establish a lightning divorce.

I would also remind that the project pays special attention to mediation and invites the parties to eventually use this mediation. If this is the case, the judge is suspended to decide so that this procedure can be established. So we have all the guards at the time of the introduction of the procedure to allow spouses to reflect.

It is on this balance between freedom and responsibility that this project is based. It will also be reflected in the practical application.

As I said in the report, we know that the discussions in the committee were fruitful. It can also be found that it was necessary to synthesize between what could be called a maximalist approach – for some the project did not go far enough in the total exclusion of the notion of guilt – and a minimalist, more social approach to the divorce procedure.

Thus, some have regretted that the punishment for wrong behavior during marriage is abandoned. Others, on the other hand, believe that the project is sinful by frilosity and would like to exclude any reference to the fault. As a result of the adoption of certain amendments, the compromise between these two visions is well seen, but they are not necessarily incompatible. In particular, I am referring to the provisions relating to maintenance pensions. I will come back soon.

Finally, undoubtedly, talking about divorce is also questioning the institution of marriage, its reasons for being, as well as the sanctions for non-compliance with the obligations in marriage, the inequalities that this institution is likely to generate.

On this Day of the Lovers, I will stop there with regard to the institution of marriage, even though I am convinced that, tomorrow, one cannot make the economy of a debate on its foundation as a legal institution.

If you allow me, Mr. Speaker, I would like to briefly express a few more detailed considerations on the project.

First of all, we should be pleased that people who wish to divorce can now find the procedure that best suits them in their own situation.

We believe that no one can be held in marriage against his will. From now on, it will no longer be necessary to use stratagems to initiate a divorce procedure. Thus, the notion of guilt with its array of accusations, conflicts, testimony of hatred will gradually disappear from the landscape.

We must be happy to see the right adapt to the evolution of society. A separation, especially through irreparable disunion, will remain first and foremost a human affair of feelings that are extinguished.

We also welcome the provision that excludes from the benefit of a possible maintenance pension the spouse who has made himself guilty of domestic violence. Indeed, a democratic society cannot ignore this plague of which women are still mostly the victims, this violence of a particular type that continues to produce a situation of inferiority intolerable in our time.

Let’s address the issue of food pensions. Criteria will be taken into account in determining it and thus facilitating the work of the judge, which may be based on the criteria of classical jurisprudence, but also on other parameters, such as the organization of the needs of the parties during the common life or that of the care of the children. These are obviously clear legal criteria on which the magistrate will be able to rely. This progress is therefore not negligible in terms of legal certainty and transparency of decisions.

It is also planned, as some have recalled, that the right to maintenance pension is limited in time. The reference period is nothing other than that of marriage. As a result of an amendment voted in a committee, the creditor is no longer expected to be able to report exceptional circumstances, from the first hearing during which the amount and duration of the maintenance allowance are fixed.

The provision adopted by the amendment is as follows: the principle is that the maintenance must be equivalent to the duration of the marriage; at the end of this period, the maintenance debtor may request that it be extended. This solution, which goes away from a flexibility allowing more flexibility in the head of the judge from the outset, seems to us regrettable – and we say it. In addition, the initial project advocated some flexibility. In fact, it was appropriate for us to allow the judge to extend the duration taking into account exceptional circumstances related to the past. Important choices can be made as soon as the couple is formed, in particular those that justify an increase in the length of the pension longer than that of marriage. We also think of the case of a short marriage following a long and stable life community.

With too strict application of the text through this amendment that has been adopted, we could lead to unfair situations.

I said it: we are living older and older, and that is so much better; in other words, we remain younger and longer. In this context, it is not uncommon to meet couples who, after 25 years of living together and at the age of 45 or 50 years, decide to get married. It is also not uncommon for the same couple to decide to divorce at the age of 55, as they remain younger and longer.

In this example, the duration of the marriage is, in this case, five years. If the principle is applied to the letter, the lady, who has devoted 30 years of her life to the couple – 25 years of living together and 5 years of married life – will find herself with a five-year maintenance pension.

It is obvious that one cannot believe that this woman, with all her good will, but at the age of 60 years, will be able to find a job, not even the resources that allow her to live decently. Certainly, in the current state of the amendment, she will be able to return to the judge to request the extension of the maintenance pension. This is a new procedure, new costs, a surplus of work for courts already widely crowded, while, from the outset, in the face of such a situation, the judge could have found the unfairness of the absolute application of the rule and provided for a longer duration of the maintenance.

In the same sense, the automatic termination of the maintenance allowance in case of marriage or legal cohabitation seems to us excessive; this is the reason for the amendment that was adopted. If it is possible to conceive the principle of the automatic termination of the maintenance allowance in the event of re-marriage, given the solidarity provided in the framework of the marriage, assimilating it to legal cohabitation is, for me, a way of giving the judge the ability to recalify the choice of spouses. In other words, our Civil Code gives the choice between marriage, legal cohabitation and de facto cohabitation, but attributes the same effects to legal cohabitation as to the automatic termination of the maintenance pension. For me, it is a re-qualification and a violation of the choice made by the interested parties by not choosing marriage and legal cohabitation.

Finally, the bill provides for transitional provisions, in particular as regards the duration of the maintenance pension. It is planned that the new period, namely the duration of the marriage, will run from the date of entry into force of the law.

I also draw attention to the fact that, in the spirit of flexibility of the draft and various amendments, namely that the judge could, eventually from the first hearing, exceed or fix a deadline other than the duration of the marriage, at that time, these transitional provisions did not pose any problem of application.

Unfortunately, with the stricter and less flexible provision that we find in the draft following the amendments, I am concerned about the actual applicability of the transitional provision, which will probably need to be evaluated.

In conclusion, Mr. Speaker, and beyond some regrets I have mentioned, it is obvious that this divorce reform is one of the most ambitious. It has many advances and advantages and responds to a lot of complaints. I think it fits best to the various situations, to the social evolution that the couple is currently experiencing.

That is why my group will vote with conviction in favour of this text.

Mr. Speaker, Mrs. Minister, dear colleagues, in sharp contrast to the great importance of the divorce reform we are dealing with here, I will only give a brief explanation here. We have been preparing this for a very long time in the Family Law Subcommittee, and because we have spent longer than expected to cut through the nodes in the Justice Committee. I think the buttons have now been cut. Therefore, I will be concise and limit myself to the essence of these rounding considerations.

I would like to emphasize that this divorce reform is, without the slightest doubt, a very important step forward. The fighting level of our existing divorce legislation is undoubtedly substantially reduced. Getting a divorce is no longer linked to the misconception and so we vote away a nonsense piece of existing legislation, a law that invited to fight.

How is it possible that we have not done this much earlier? We must dare to ask that question. After all, what is the meaning of a law that causes two people to engage in a battle, a fight over who now has the fault in the disappearance of the love between them both as a condition for definitively separating, while it is determined that the love is no longer there because one of the partners no longer sees it sitting and the love is therefore no longer mutual? Why should the legislator in such a situation organize an obstacle course to process each other’s blood from underneath the nails if one of the two does not agree? This is ⁇ heavenly. Let us, therefore, as soon as possible get rid of those obscene patterns of thought.

The new divorce legislation would be too flexible and therefore encourage people to divorce. I would like to call this a misconception of the worst kind. After all, spouses do not divorce because the divorce procedure is quick. However, they divorce because there is no more mutual love, because at least one of the two no longer sees the marriage life. If one of the two spouses takes the step towards divorce, that is the end point of a preliminary consideration that has sometimes taken a very long time.

In my 27-year career as a lawyer, I have very rarely met someone who was convinced to divorce and took the step back towards marriage once that decision was made. However, if one wishes to resume the marital life, it can always be, regardless of whether there is a rigid, unfathomable or a smooth, human divorce legislation. Obstacles and long waiting times are therefore absolutely meaningless. They have no meaning as a remedy for broken marriage relationships.

Colleagues, therefore, it is very positive that, in the absence of agreement from the actual divorce, it is essentially a matter of establishing the irreparable disturbance and therefore of establishing short periods of actual separation or of actually living apart. It is clear that divorce will cause less suffering.

In this regard, one shares with the processing process that would take time. The answer to this is very clear. A separation procedure with a high level of combat separation, as is now the case, only rolls the knife into the wound in a lengthy and unnecessary procedure stroke and thus drives the pain. It intensifies and cultivates the pain. This is not beneficial to anyone, in the first place not the children and, of course, not even the divorced partners.

There is no doubt possible. The easing achieved by this divorce reform is a drastic humanization of the divorce legislation that will reduce the number of disputed divorces. No, we do not claim that the divorces will disappear. They will decrease drastically. The agreement culture will continue to grow. In that regard, it is very positive – which was initially not the case – that divorce by mutual consent remains as a separate form of divorce.

It is positive that this divorce is eased by mutual consent and also gives a second life in the context of divorce based on lasting disruption. The fact that EOTs – divorces by mutual consent in the jargon – are now also possible with partial agreements may raise questions and may diminish the healthy pressure to reach a global agreement.

However, I hope to eventually see a new trend, in which the accord culture will only increase. Agreeing to have the judge decide on the things with which you do not agree is also an agreement. It is, by way of speech, an arbitration supplement as part of a global agreement.

What has fallen in the attention to the divorce reform quite between the twists of the big changes that are in the picture, is the following. Of course there is the procedural technical advancement by creating the possibility to initiate a procedure through a petition on contradiction and to submit new requests at any time free of charge. It is a cost-saving progress. There is also another, yet important innovation completely in the shadow: the introduction of mandatory information by the court on the possibility of mediation and the provision of all useful information on judicial administration.

My colleagues, I would have taken a step further. Following the successful example of several countries, I would have liked to have the mandatory attempt at mediation – and not the mandatory mediation, as is commonly thought – registered in law. So far there is no parliamentary support.

It is also apparent that there is no parliamentary support for a completely innocent divorce, where the error would no longer play any role in the consequences of the divorce. So far there has been no majority.

Furthermore, I find it a missed opportunity – and I have said this repeatedly – that the reform of liquidation and distribution is not part of the new law at all. Without the slightest doubt, the current procedure of liquidation and distribution is a source of much unnecessarily lengthy fighting divorce lamentation. However, in the course of the parliamentary hearing, I provided a simple solution in the form of an expert report which in a short period of time cuts the nodes and makes things clear, so that there is no longer a need to fight for the wealth. I was talking about a so-called divorce curator, who prepares an expert report on liquidation and distribution.

It is my firm conviction that we could have easily implemented that with a little more urge for innovation. It is very easy to separate the reform of liquidation and distribution from the whole procedure of liquidation and distribution in our law only as regards divorce.

But well, what I want most of all is that we have an eye for the big steps forward. This should ⁇ include the whole of the new provisions on maintenance benefits. The stimulation of the self-saving of the former spouse is at the forefront, and therefore the limitation of the maintenance allowance in time, with the need as the starting point rather than the standard of living during the marriage.

Colleagues, over the years in this Parliament, I have learned that family law is a very tough thing, a very tough matter to reform, and that it can actually be reformed only gradually. Well, this is another big step, a historic step forward. I already dream full of the many next steps, but I look forward at this moment in the present great step forward in our divorce law.

I looked at Mrs. Marghem or Mrs. Gerkens. “Nemo dat quod non habet.”

First of all, I would like to thank the rapporteur for her excellent report.

There should be no misunderstandings about this, our group is absolutely in favour of making a family law legislation as humane as possible and where it can also adjust the divorce legislation.

However, it is important that we, especially in the matter that is today the subject of discussion, look at the evolution that the change of legislation has brought about in the last ten years. I think it is very good that other choices were made before and other choices were made earlier. This is contrary to our neighboring countries, where one immediately introduced the "innocent divorce", between quotations, because a divorce is never innocent and the jurisprudence in our neighboring countries teaches that too.

That we have waited with the adaptation to a pronounced innocent divorce and that the legislature of the time in the early 1990s largely eased the divorce by mutual consent in the first place, has been a good thing when one looks at the problem with which some families are facing. This has, in the field, given rise to phenomenally many divorces by mutual consent.

The choices made in the early 1990s, which were also our choices and for which we are also responsible and for which we are proud, have made that 80% of the family problems in marriage today are solved in agreement, in consultation and after discussion, no matter how difficult. It was and is good that first things first happened and that this happened earlier than the legislation we are talking about today.

CD&V agrees that adjustments are needed to the divorce based on facts, the divorce based on guilt, as it is called today. We submitted legislation on this subject more than six years ago. Those who want to place us in the camp of the opponents are wandering in this regard.

We already had the following principles. We called on families facing problems – married families and other families – to help and help to try where one is next to the track, to help people to get back on the right track, where it can. Where this is not possible, we can accept it too. We respect that too. We also respect the choice of people.

If a family and a marriage can no longer be saved, then one must go to mutual consent as a priority. Leave it untouched, if necessary in addition to the age requirement of 20 years. Indeed, divorce by mutual consent allows after one year of marriage rather than after two years, but ⁇ do not make it shorter.

We already then advocated for divorce in case of irreparable disorder, where we took one year of actual divorce as a legal presumption.

But then, like now, we advocated the principle of responsibility. Responsibility must be taken in all kinds of circumstances, including in private life, and therefore also in marriage. This also includes respect for choices made together. In any case, this means that sometimes, against will and thanks, responsibility must be expressed in the form of maintenance. Alimentation or maintenance does not have to be eternal; it does not necessarily have to be a life insurance, but should be considered in light of choices made in better times. These are choices based on the possibilities of the parties, of course, based on the children. The duration of marriage can be a criterion, but it is not only the only criterion. We are of your opinion that, when there is a manifestly heavy debt under one of the parties, this must indeed have consequences in the field of maintenance.

I also had concerns with your draft, where it incorporated divorce by mutual consent into the ordinary divorce on the basis of irreparable disruption. I had doubts about the fact that there was no appeal possible. I had concerns about some sharing agreements, such as encouraging people to make definitive agreements about everything. However, I congratulate you and your cabinet staff for the open mind in which we have been able to discuss this draft and for the changes that have indeed occurred, taking into account the comments of the opposition. I would welcome it, Mrs. Minister, if I could have noticed that open mind also in other designs.

This draft has, therefore, indeed positive points: the fact that divorce by mutual consent remains ⁇ ined in a separate procedure; the fact that we seek humanization in some situations, though I know that in reality this will not always be possible; the fact that we encourage mediation; the fact that the grave error for a bit still persists. I know that there is criticism, but there is also responsibility in that sense. The primary marital obligations, such as help, assistance and loyalty, continue to exist and are essential to me in any relationship. Even with unmarried couples, this seems to me to be fundamental points in life. In any case, the fact that maintenance ends when a person marries again or when there is a legal cohabitation, seems to me positive and the evidence itself. I only regret that, in the case of actual cohabitation, the termination of the maintenance is only optional. The fact that when initiating a divorce procedure, one can easily switch to a divorce by mutual consent is positive, because I continue to argue that this is the most appropriate way in case of inevitable divorces.

This can also be said in these banks by an opposition party.

However, we have our concerns. You know them. Divorce by mutual consent is permitted without minimum marriage duration. Colleagues, I know I am making a caricature of it but when one can already negotiate on the party dish on the conditions of divorce, then this goes a step too far for us.

Parties need cooling and reflection in important human choices, in the most intimate of their privacy. You don’t get married on one, two, three. In case of divorce, you do not have to go ice overnight. For me, it is essential that the parties have time to treat a divorce psychologically. This psychological process is fundamental. Respect for that psychological process can soften and facilitate a subsequent procedure anyway. Agreements are thus made easier. This is essential, even for children. Scientific literature shows that, no matter how difficult it is, they can still handle a divorce relatively well if that divorce can take place in a decent manner between both parties. This is primarily the responsibility of these two parties. Despite my understanding of their emotions, because love and hatred can sometimes be close to each other, that is their first responsibility in this regard.

Colleagues, I regret that we, as legislators, do not dare to signal that we at least expect married people to try it for a while, that they do their best to see if it does not succeed, and that therefore there is no minimum marriage duration required before a divorce can be initiated. I fear this has nefaste and perverse side effects. I have already stated this in the committee. One of those perverse side effects is the hypocritical marriage. We will not be able to avoid the occurrence of left and right unfair marriages. However, if we later make the divorce as soon as possible, through mutual consent but also through irreparable disruption, then the number of hypocritical marriages will increase.

Can Mrs. Storms interrupt you, Mr. Verherstraeten?

Mr. Speaker, I find it difficult to combine Mr. Verherstraeten’s argument on the increased likelihood of hypocritic marriages with a bill currently pending in the Subcommittee on Family Law and where a party fellow of you advocates for the marriage to take place where the candidate-marriages reside. The argument that a greater probability of hypocritical marriages leads to a lower probability of investigating such matters is simply wiped out there. You may need to discuss this with your colleague again. After all, I see on the one hand a CD&V that has an eye for this and on the other hand a CD&V that wipes out such arguments.

I think one has nothing to do with the other. The bill you are referring to is about choosing the place of marriage. Some opponents – which will be the subject of debate – assume that when one chooses for a particular congregation, one suspects that in those congregations the control over hypocritical marriages would be nonexistent, which would not or less be the case in major cities. I still have confidence in all municipal governments. The municipal governments also have the duty to declare false marriages.

The essence of the story is, there you share my opinion, that the risk of hypocrisy exists, anyway, regardless of the legislation. Making a divorce already possible the day after the marriage or allowing a divorce through irreparable disorder three and six months after the actual divorce, the threshold is placing tremendously low. That is once again an invitation to enter into a false marriage, to then be able to separate from the real very quickly, too quickly in my opinion, but still be able to obtain a residence permit.

An amendment to the Foreigners Act, in which one has a possibility of control up to three years after the issuance of the residence permit, is hardly applicable here. That legislation does not apply to the (...) and to family reunification of foreigners with Belgians. This accounts for 80% of family reunification. The amendment of the Foreigners Act concerns only one-fifth of the cases. I do not believe that the parks will still make the destruction of marriages a priority once the divorce has been proclaimed. This risk is assumed, however, by allowing divorce too quickly.

Divorce through irreparable disruption after an actual separation of one year seems to me to be a reasonable period. If that period is reduced to three or six months, it is too short. What I regularly experience in my other capacity is that one of the two parties has arranged for himself to leave the marriage.

This is not the case with the other party. It is not yet ready for it and needs psychological treatment. This processing seems to me essential before moving to a final legal settlement. If one forces a procedure at the most emotional moments, then I fear that those procedures can sometimes disappear with all the risks. Give that psychological processing time before proceeding. This increases the likelihood of divorce by mutual consent.

I fear that in the field the number of divorces by mutual consent will decrease. One will choose the other procedure because it is faster. One will not speak out the problems but quickly enforce a divorce and then fight out the problems through the court. I fear that we are threatening to go to delayed fighting divorces because of the choices made here now.

Finally, there is the issue of nutrition. If we read the draft law and the text as it is present, necessity is actually the criterion. Who is entitled to maintenance? Only the needy husband. Alimentation is actually intended to cover the state of need. I fear that this nutrition will be enough to survive, but not to live. It is important to stop here for a moment.

This morning we hear in the news that children in the Netherlands are the happiest, while children in Britain and the United States are the most unhappy. The latter societies are much less solidary than ours. That was the first criterion. There is not only social security from the government but also solidarity from the people themselves.

Social security can only be achieved if it is embedded in voluntary solidarity between people. Social security must have a foundation, a socket. If she does not have that socket, then she threatens to collapse and threatens to have insufficient bearing power. In any case, this is an important argument.

The second argument is the instability of families. We are in Belgium with unfortunately seven percent disability poverty, which is a too high figure. Scientific studies show that one in four of those disabled poverty is associated with family disengagement and family disengagement. Not only through the divorces, but also by partners who live together, with or without children, and break up.

The government and the legislature cannot be blind to that phenomenon and to the associative consequences it has on the ground. In Sweden, a scientific study was conducted and asked, to partners who were divorced, if one was happier than before. One in three recognized to be less happy than before the divorce. These are phenomenal figures. For me, that means that maybe couples shouldn’t have separated. An important data and criterion was, of course, the poverty in which one ended up through divorce.

With our legislation, we go a little too smoothly and too loosely on this. We cannot unconditionally impose every family disintegration, and its social and economic consequences, on the government and the taxpayer. We have ourselves, as a result of the choices we have made with the partner or the spouse, also to take a part of responsibility. If we only provide assistance to the needy, and only to cover the state of need, then I fear that this is too little and in some situations will give rise to very perverse, associal consequences and social dramas. I think the choices and criteria are too flexible.

I understand the individual’s desire to go to a divorce. We must have understanding for this. Politicians and governments cannot force people to be happy, but we can point them to their responsibilities and actually expect them to be a little solidarity.

Based on the criteria we have chosen here, we do too little. We are spending too much on society. It has to do with family law choices, which I think have been made too much in recent years. It is about choices based on individual desires, which are important and must be respected. In addition to individual desires, however, there is also a solidarity responsibility, which is essential and in our law – in recent years also in family law – too much evaporates.

Despite the many positive points in this draft, we cannot approve it. It goes too fast; fighting separations will continue to exist in delayed relay. There is too little solidarity. The design presents dangers for hypocritical marriages. For these reasons, we will not be able to approve the draft.

Mr. Speaker, Mrs. Minister, dear colleagues, because of the irony of fate that must have been raised by other colleagues – irony of fate beyond any fiction – the topic we have to discuss today is the separation of couples, more specifically, the dissolution of the bonds of marriage by divorce.

This reform comes only at the end of the first study in the Chamber, and yet I have the impression of returning, like Ulysses, from a long adventurous journey, from a journey sown with troubles, during which we have experienced various turbulences. First of all, start-up problems because it was necessary to base on a text and choose it, then problems of orientation and direction, confrontations of choices or, sometimes unfortunately, the absence of a real dialogue of ideas. At some point, we could even wonder if there was a pilot on the plane. To others, we feared for the robustness of our device and its ability to arrive at good port.

With the discharge of all members, it must be acknowledged that the goal was very ambitious.

From a text that is based on “diverse concepts whose internal articulation does not appear clearly”, to quote the State Council, it was necessary to infuse a real dynamic of change in divorce as we now know it. If each of the political groups had already expressed itself individually through a parliamentary initiative – this is ⁇ the case of the MR – it was however necessary not only to determine the coherence of the text of the draft work but also to define to what extent it was compatible with the current or the currents defended by our political family.

As Sacha Guitry, who spoke a lot about women and not necessarily against, said, “Love is big words before, small words during, and big words after.” Unfortunately, the last part of this quote is just too true. This is why our group has been constantly focused on seeking the pacification of debates at the time of separation of couples and to avoid as much as possible the phase of big words.

Beyond the moment when the effects of the actual marriage are broken, divorce often constitutes a long-term relationship between people who sometimes no longer understand each other at all. It is in this perspective that the contract that binds the former spouses must not unduely favor one of the parties. This would poison the relationship between them, which is ⁇ detrimental for a long-term relationship, especially when there are children. It is in this perspective of searching for balance that our group has built its reflection on this subject.

First of all, talking about the foundation of divorce involves asking the question of the cause or causes of the failure of marriage. The current system has its own logic and its own pragmatism: it considers divorce as a termination of marriage for breach of its main obligations, like any convention. This is the obligation of loyalty, relief and assistance that you know well.

However, if the duties of marriage persist and the commitment of persons to such a relationship implies their respect, it is not so much the precise failure to fulfill an obligation of that marriage that constitutes the cause of the rupture. In fact, it is only a symptom. In other words, if in the relationship between spouses the faults are established, it is that in reality, in the essence, the quality of the relationship has allowed it: there is a failure of the conjugal life. The mutual behavior of the spouses must no longer be seen as a breach of the rules of marriage, but rather as a sign that for these persons the observance of their obligations is no longer meaningful in view of the irreparable disunion of the couple.

Therefore, without questioning the concept of duty, it must be admitted that building a "guilty" break of the link around symptoms without regard for the "disease" in itself is quite outdated. It is necessary to focus on healing the manifestations of the "disease" and, in some cases, unfortunately, the only remedy is separation. This separation must take place, if possible, without attribution of fault.

The MR group therefore considers that, in the field of private relations between persons, it is not up to the civil legislature to attach more importance to certain behaviors than to others. All experiences are relative and certain attitudes will be offensive for some but not for others. We believe that it is the whole of these that a party must be able to denounce based on its personal perception of the degree of influence it has had on the disunion.

Therefore, we consider it appropriate for the judge to have a power of discretion before pronouncing the divorce and to be able to make the diagnosis of "irreparable disunion", consisting in the impossibility of continuing and resuming the common life, depending on the different manifestations of the "disease" which the spouses consider appropriate to expose to him.

However, citizens do not always want to bring their private affairs to court. It is therefore foreseen that the irreparable disconnection may also be induced by a significant de facto separation. The spouses prefer to let time do its work and lead to divorce, rather than submit to the analysis, even summary, of the reasons for their misunderstanding.

This is perfectly acceptable when that decision is the result of a common reflection or a unilateral choice that has been duly challenged and digested by the other party. This choice should not be imposed without leaving the other time for acceptance and realization of the end of his couple. I will return to this point later.

The pacification of the debates also went through the introduction of a greater flexibility between the forms of divorce and the maintenance of the divorce procedure by mutual consent which can quite well be interpreted as the most consensual form of acceptance of the irreversibility of the disunion.

Another area where the duty of pacification of the legislator is indispensable to our sense is that of food solidarity between former spouses.

There are two opposing concepts on this subject. Some consider that the legal effects of the marriage leave an imprint that must persist beyond the dissolution of this marriage, the bond being, so to speak, never broken, while others consider that it is necessary to put an end to the effects of the marriage as soon as it is dissolved, the former spouses becoming to each other foreigners free from any obligation.

In reality, none of these two extremes is desirable or conceivable in our society.

To imagine that spouses become perfect strangers again implies that the latter, for example, have no common children and, to a lesser extent, few common assets to liquidate. Regardless of adhering or not to this principle, it turns out to be quite difficult to consider in practice. Furthermore, it does not seem fair to me that the legal commitment, whatever the marriage, is terminated without any other form of transition. On the other hand, ⁇ ining artificial economic ties for too long between people who no longer understand each other turns out to be entirely irreversible in practice. The relationship is over, the consequences of the breakup must be managed as much as possible so as to restore a healthy and serene climate between the parties in order to be able to turn the page.

The MR group has always thought that the ideal is to seek a balance between these two extremes. The reflection that my colleagues and I have carried out on the pension between former spouses is, for us, an indispensable prerequisite to carry out a coherent and feasible reform. At first, we attached ourselves to the nature that we wanted to reserve to it.

As a result of the change in the basis of divorce, the maintenance pension has lost its character as a sanction for the spouse guilty of the separation and hence its main justification. It was therefore necessary to reflect on whether or not this solidarity should be ⁇ ined and the role that this solidarity should play. As I have already pointed out, a pure and hard rupture of marital commitments is not acceptable and we believe that this pension must persist, but move from an indemnity character to a more nutritious character.

It then becomes logical to conceive of an alimony, possibly due by a former spouse, as part of a divorce without fault. It will constitute an obligation of solidarity in the prolongation of that contracted by marriage, in order to guarantee the former spouse in need or the least fortunate, the possibility to regain a decent place in society and to start from scratch.

To be quite explicit, or if one wants to be quite cynical, I will use a purely contractual metaphor: the pension would become a kind of notice compensation that must give time to its beneficiary to find means of subsistence. Its granting and its modalities should therefore be based on this notion of things. However, we advocate that the judge, here too, may exercise his office by adapting his decision from case to case and taking into account all the circumstances of the case.

From this more nutritional view of the pension, some corollaries logically derive. We enter into a concept of the pension whose vocation is to be limited in time, which the bill achieves by inserting a maximum limit with as reference the duration of the marriage. This new pension is based on a certain subsistence of solidarity between the former spouses, the time for the least fortunate to get out of the state of relative need into which the breakup and the choices of common life would have plunged him.

The new nature of this pension implies that this solidarity becomes subsidiary when another one is installed which better corresponds to the creditor’s affective choices. In other words, it is logical that the choice for a former spouse to enter into a new legally-framed relationship, a choice made quite consciously, has consequences on the former relationship and that the payment of the pension is no longer to be borne by the former spouse.

If not, and by increasing the trait a little, the situation would become surreal, the ex-husband would have to finance the new couple.

In the case of de facto cohabitation, the parties establish themselves in such relations, knowing pertinently, though, that there is no legal effect attached to them in matters of solidarity, which distinguishes the de facto separation from the above-mentioned legal relations relating to marriage and divorce.

In any case, a lasting cohabitation of fact can have the same effects as food polygamy and maintain some hypocrisy. Therefore, we considered it appropriate to give the judge the opportunity to look at these issues and order, if he considers it justified, the end of the pension.

Then the question of equity in this matter arose: is it conceivable, in our present society, to limit ourselves to a purely economic and nutritional view of the situations, to attach ourselves to a purely manichean reasoning, that is, whether one meets the economic criterion of the state of need and obtains a pension, or not?

Certainly, the judge will already have some discretion, in particular in the assessment of the concepts used: the state of need and the significant deterioration of the economic situation of the creditor.

However, it appeared that it was necessary to allow the arrangement of this principle when it would be shocking that a person, which corresponds to the economic criterion set, receives a pension while he has had a quite reproachable conduct during the marriage.

Obviously, some will say that this is again the principle of the fault that is thrown out by the door and returns through the window. However, equity requires us, beyond the purity of principles, to take into account, in a manner consistent with the evolution of our society, the problems that arise in reality.

While the role of the legislator can sometimes open breaches and inspire a change in customs, he must act in a moderate and proportionate manner to the feelings of society, respecting both law and equity.

In the pursuit of this balanced mitigation, we considered that it was not necessary to stigmatize a particular behavior, such as the fact, under your impulse, Mrs. Minister, the project on domestic violence, but rather to allow the magistrate to take into account all the circumstances of the cause in order to assess in full conscience the opportunity to award a pension or not.

For us, indeed, although such behaviors can call only the most severe reproach, we consider that there is gender confusion: if there must be a sanction, in the context of a divorce, it is in the name of the observance of the obligations of the marriage whatever they may be. In this perspective, any behavior that violates one or the other of the obligations of marriage must be punished, whether or not guilty.

Giving a special fate to domestic violence, which deserves criminal incrimination, as part of a divorce trial, is not appropriate, in our opinion. It is to induce confusion, divorce being not the social response to these facts, but the private response of the abused spouse.

I think, as one French head of state said, that in politics, you must heal the evils and never avenge them. As a victim, it is necessary to encourage the victim of these strikes to bring the facts to criminal proceedings. Should it be seen as a filigrane, in this particular stigmatisation, a certain willingness to print your brand to the project in this area, unless you have first been able to indicate it in a coherent and innovative overall vision of the project?

It is, in my opinion, difficult to find an adequate formula to establish the safety valve necessary for purely economic reasoning and therefore to find the desired balance. However, it can be regretted that the terminology and the mix of genders do not give a very clear view, in practice, of situations that will or will not lead to the granting of a pension.

Let us hope that the procedure, which will inevitably meet the diseases of youth, will be able to establish itself consistently. I have no doubt that the creativity of the parties, plaintiffs and magistrates in this matter will make things evolve.

However, it will take some time before a harmonisation of jurisprudence is achieved, hence the importance of drawing out a well-established and pre-established framework of reasoning in order to imprint the text of an “ratio legis” enlightening for legal entities and practitioners.

Finally, once the substantive principles have been established, the procedure should also be arranged in order to ensure the most consensual possible course of the procedure. The main innovation that we welcome is the place that has been made to negotiate agreements between parties at all stages of the procedure. However, in order to maintain efficiency and genuine interest in the measurement, it was necessary to temper. The settlement of the marriage regime between spouses has not been changed. It was therefore appropriate to maintain the balance between a willingness to cooperate extensively between the parties and a willingness to ensure that they only permanently mortgage their rights with full knowledge of the facts, i.e. at the time of liquidation and once the accounts have been drawn up.

On the other hand, nothing has been changed – and I welcome it – to the common law of appeal, which remains ⁇ ined both for judgments granting and refusing divorce. In addition to the non-observance of the principle of elementary equality between legal persons, the justification invoked for the removal of this possibility for divorce judgments was not convincing. The possibilities and filters to avoid abusive recourse already exist. We must also count on the maturity of the parties, I repeat, and the professionalism of lawyers to do so.

Although even the appeal would have little chances of succeeding, the fact that an appeal cannot be applied successfully does not justify in any way that this right is withdrawn to the justiciable, except to threaten the whole contentious of deprivation of the double degree of jurisdiction. Indeed, in all matters, there are obvious cases that will not call for reform in appeal.

Being in the continuity of the reasoning that our group followed during the elaboration of this reform, there are certain points adopted by the project that seem dissonant to us.

1 of 1. Separation of facts in case of unilateral request. I believe – I’ve repeated it enough and I’m not the only one to say it – that allowing a party to divorce unilaterally by repeating its own will twice, within a period of time that may be less than one year, introduces a kind of “divorce repudiation” that is unacceptable. In the case of a unilateral application, it is important that the de facto separation of more than one year is effective before the judge can pronounce the divorce.

Talking about the end of marriage questions the content of the marriage itself. If, as I have explained, one can adhere to a certain evolution in the way we view things in our society, it seems unhonest to pretend not to touch the content and obligations of marriage, while emptying it from its substance by allowing a “unilateral” termination with a sort of six-month notice, which equals certain conditions of dismissal in the world of work. This is not an acceptable parallel.

Of course, you must be able to go quickly when it is desirable and when the divorce is not contentious. Nevertheless, we must respect situations where partners do not agree on the irreversible nature of their misunderstanding. If it can be accepted that the situation of de facto separation that persists for a certain time – even because of the fact of a single spouse – indicates quite clearly an irreparable disunion, it must nevertheless be allowed that period to pass effectively and fully.

To establish such a possibility of diverting the measure from his mind, by introducing this exception in the second paragraph, is to provide for a genuine right to divorce. The spouses are no longer treated in the same way; thus one unduely favors one who is a supporter of a separation, which is – I dare to say it – indirectly questioning the very value of the marital commitment freely taken before. We believe that every commitment involves responsibility. Allowing this “easy divorce” is a way to encourage irresponsibility.

2 of 2. Application of the time limitation of the duration of pensions to pensions that are currently in progress. To impose a new limit in the time of pension on current situations is to disregard the balance that led to the decision, the balance of the state of the company at the time of the decision and the legal uncertainty.

This means that parties who obtained an alimentary pension under the current law have played with knowledge of the rules of the game and will see their pension change in its duration, after the entry into force of the new law, into a new rule of the game that was not theirs at the time they concluded or eventually received the pension in question.

Divorce proceedings are not a new technology that all prosecutors should benefit from. Such an approach demonstrates once again that the priority given to divorce is at the expense of the accountability of the parties, in the bonds they have chosen to establish.

Let us understand: the "easy" divorce does not constitute, for me, a progress, inasmuch as every failure of a marital relationship cannot constitute an evolution which is to be welcomed. What constitutes a gradual approach is to arrange the procedure so that this step, if it becomes inevitable for a couple, proceeds as less painfully as possible for each party and especially for the whole family.

We regret the lack of readability of your position on this subject. You have once defended an innovative position by defending a maximum term to be fixed while, on the other hand, you do not support the idea that in the event of an official change in the marital status of the creditor, the pension no longer needs to be.

In conclusion, we will support this project which has the merit, despite what I just said, to advance some new principles. However, Mrs. Minister, you know, on a personal basis, and in order to respect the coherence of my reflection, I will abstain from measures that do not fit with the evolution I support.

There are still...

The [...]

... on the whole?

On the other hand, Mr. De Crem. Everything is in everything, and reciprocally.

I want a minute!

Madame, I will give you whatever you want. Do you want to answer now?

I have to be absent for a minute.

“One being you miss, and the world is depopulated!” I let you leave for a minute.

Mrs. Storms I know that you have an agenda issue and you now get the word, followed by Mrs. Lahaye, Mrs. Gerkens and Mrs. Taelman.

Today we are taking another important step in the modernization of our family law. After addressing the right of descent, enabling adoption by same-sex couples and granting inheritance rights to the longest-lived cohabitant, today a bill is being proposed to make divorce more human.

Of course, we prefer people to stay together long and happy. How can it be different on Valentine’s Day? If a marriage falls apart, for whatever reason, we must nevertheless at least ensure that the frame conditions of the divorce procedure are as favourable as possible.

Procedures in which one spouse must prove that the other is guilty of the failure of their marriage are often straightforward declarations of war. It destroys people, which we better avoid. Therefore, the divorce procedure must be made more humane and less conflicting. Divorces should be avoided as much as possible. This is the starting point of the bill. We fully agree with this.

The greatest merit of the present bill is, in our opinion, the choice for the irreparable disruption of marriage as the basis for divorce. The error principle in the divorce proceedings is abandoned. That is a good thing. The debate about who is to blame for divorce is often useless. The current divorce procedure based on error, where the winner gets everything and the loser gets nothing, is the best breeding fireplace for fighting divorces.

By, on the one hand, working with a definition of “irreparable disruption of marriage” and, on the other hand, creating suspicions of irreparable disruption, it is putting an end to procedures in which one spouse must be declared guilty and the spouses often each other’s dirty outdoors.

Choosing the irreparable disruption of marriage as the reason for divorce should lead to less conflicting divorces. This is of primary importance for the children. The moment when parents make it clear to their children that they are separating is engraved in a child’s memory. However, from the explanation of the Flemish Commissioner for Children’s Rights, it was clear that a child quickly takes the wire back. Children make a distinction between physical separation and subsequent arrangement.

Therefore, it is of the utmost importance that the divorce procedure is as conflict-controlling as possible. The procedure should allow parents to make as good arrangements as possible, so that disputes are avoided afterwards. After all, these are just the aforementioned quarrels that are traumatic for children.

In that sense, spirit is therefore satisfied that divorce by mutual consent remains in the draft law. We disagreed with the original draft law in which the possibility of separating by mutual consent completely disappeared. The EOT is a procedure that is widely used and is now well known. This cannot simply be thrown overboard. The EOT allows spouses to reach an agreement on all points prior to divorce. Good, balanced appointments between spouses avoid quarrels afterwards.

The EOT also provides a good framework for divorce mediation. In the case of an EOT, the two basic principles of mediation can be played optimally. The ex-partners can decide on their own and together, and they also negotiate on an equal footing. Now I suggest the course of creating an EOT probably too rosy. However, I believe that the principles of mediation should be used much more in the EOTs. I remain hopeful that both the spouses and the lawyers involved will increasingly resort to mediation in order to conclude balanced agreements carried by both spouses.

Spirit also considers it a good thing that the conditions of an EOT are eased. We fully support the abolition of the minimum age of twenty years and the minimum marriage duration of two years. The abolition of these conditions was, in our view, necessary in order to allow the EOT to still act as an attractive alternative to the divorce procedure based on the irreparable disruption of the marriage.

Another important aspect of this bill is, of course, the maintenance allowance after divorce. Here, we have opted to let the error principle still play, although the bill speaks of a serious mistake. Although we do not really find this optimal, we can with spirit yet understand the position of the government, namely that in a divorce there must still be room for expressing the suffering of the victim. Whether this provision in the law will once again open the door to bitter discussions between spouses will have to show the case-law. We are already in favor of the fact that the judge cannot use the notion of grave error in a light sense to address any defect of one of the spouses in order to refuse maintenance. For us, it must really be a serious defect, such as an insulting adultery.

We consider it a good thing that the maintenance allowance after divorce is also used as an instrument in the fight against intra-family violence, more specifically violence between spouses. We are very pleased that the law explicitly stipulates that the spouse who is found guilty of such crimes cannot claim maintenance.

Violence and abuse between spouses cannot be tolerated in our society and must be combated in all possible ways.

An important innovation on the maintenance after divorce, which we welcome, is the limitation of the benefit in time. The draft law expressly provides that the duration of the benefit may not be longer than that of the marriage. For spirit, it has long been a thorn in the eye that under current legislation a maintenance allowance can last a lifetime. This was actually negative for both former spouses: the maintenance liable is punished as if for his entire life because he has ever been married and the maintenance liable was also not really encouraged to be self-saving.

Of course, the practice is not so black-and-white and there are a lot of scary situations where, for example, wives who have cared for their children all their lives, as a result of a divorce, are left behind not only without income but also without work experience. In order to take into account as much as possible such striking situations, the bill has found a right balance to us. In order to determine the amount of the benefit, it is envisaged that the court may take into account various elements such as the duration of the marriage, the age of the spouses, their behavior during the marriage regarding the organization of their needs and the care of the children. All these elements should ensure that situations are taken into account in which most women stay at home to take care of the children. In addition, the duration of the benefit may also be extended in certain circumstances.

Mr. Speaker, Mrs. Minister, colleagues, reforming the divorce legislation was not really easy. After all, there are very many people involved in a divorce and divorces are often accompanied by a lot of sorrow: not only with the spouses and their children, but also more broadly, for example with the grandparents. Different interests must be taken into account.

The draft law that is now presented is the result of many discussions: first in the subcommittee Family Law, later also in the committee for Justice. In the end, a balanced compromise has been reached. It may not be as revolutionary as we would have wanted, but it is ⁇ a step forward in making the divorce procedure more humane. The Spirit will therefore approve this bill.

Mr. Speaker, Mrs. Minister, colleagues, the VLD is pleased that today we can finally vote on a long-awaited bill. We have been advocating for a more human divorce right for years. The legislation is no longer adapted to the current highly evolved society.

It seems useful to us to outline the short history of divorce law in order to frame today’s discussion. For a good understanding, divorce was introduced in our regions in the year 1792 and was possible in many cases: mutual consent or the behavior of the other. That could be both a guilty behavior and a non-guilty behavior such as mental illness, five years’ absence, immigration and even “incompatibility of mood and character”. In 1794 there was a six-month separation.

The Civil Code of 1804 held a reaction against this liberal view. From then on, only guilty behaviors could still constitute a reason for divorce. The EOT was ⁇ ined, but strictly regulated.

In 1974, a proposal was made for the principle of innocent divorce. The divorce could be obtained after ten years of actual divorce without having to prove a mistake. However, the error still had repercussions in terms of judicial costs and personal maintenance. The person applying for divorce was deemed to be the culprit and had to pay the court costs and possibly a personal maintenance fee.

In 1982 the term was reduced to five years and in 2000 to two years. A radical reform of the procedure, but not of the grounds, was carried out in 1994. In 1997 there were still some limited changes to the procedure.

The Belgian Divorce Law today therefore covers five types of divorce: the error, the mutual consent, the divorce on grounds of more than two years, the divorce due to mental disorder and the conversion of the separation of table and bed.

To show you how important the draft law is and what impact it has, I would like to give you the following figures. In 1830, there were four divorces.

At the turn of the 1900s there were 690, to evolve to almost 4,000 in 1954 and 6403 in the year 1970. Ten years later, that number more than doubled to 14,457 divorces and in 1990 to 20,311 to stand for 26,423 divorces in 2000.

The most recent figure, from 2005, with the National Institute of Statistics as a source, lists 30,844 divorces. Since the 1970s, the number of divorces has continued to rise rapidly and steadily. Meanwhile, the divorce legislation covers about 60,000 adults and their children each year. However, the number of marriages continues to decline. The reform, which the legislation involves, is therefore important and has an impact on a lot of Belgians.

To outline the problems with current legislation, I would like to give some examples, taken from life. I give the example of Marc and Annemie, married in 1970, three children who are all three out of the door. In fact, Marc and Annemie have been living side by side for a decade and there is no love between them anymore, and therefore no marriage in the true sense of the word.

Marc wants to survive in that way, Annemie doesn’t, because she feels wiped away in a loveless relationship and just wants to go on. A real mistake of her husband cannot prove her, which makes her unable to obtain divorce today and must wait until two years after the actual divorce.

What is the problem, colleagues? If one of the spouses today wants to divorce and the other does not, so that no EOT is possible, that person is obliged first to live in fact separated for two years or yet to prove or invent the mistakes of another, as colleague Wathelet has said.

Even in the case of divorce on the basis of actual divorce, one of the partners is deemed to be guilty, with repercussions in terms of court costs and personal maintenance.

Let me give another example: Wim and Lieve were married in 1991. In 1999, it was revealed that Wim had had an out-of-marital relationship for several years. Broken by that infidelity, Lieve leaves him. Wim’s relationship is very fuzzy and cannot be proved. Approximately a year later, Lieve, in turn, gets to know someone else and, at Wim’s request, she is caught for adultery. Conclusion in the case: Love is the guilty wife.

In other words, jurisprudence has shown that the error that led to the failure of the marriage is difficult to detect by a judge and sometimes leads to very unfair situations.

Another example is personal maintenance. I give the example of André, married in the year 1954 with Arlette. After 10 years of marriage, they break up. The divorce is obtained twenty years later, in 1974, on the basis of a factual separation of more than ten years. Since 1964, meanwhile more than forty years, André has paid personal maintenance, which initially amounted to 250 euros, and now increased, as a result of the indexation, to more than 300 euros. Meanwhile, he is old, dementia, and has a lot of medical expenses, which, because of the payment of the personal maintenance allowance, he has fallen into poverty. Arlette is still healthy. She has a relationship without officially living together and actually uses the maintenance money to enjoy life, because in fact she can get around with her retirement.

The problem in this is that someone who is sentenced to a lifetime maintenance allowance can later find themselves in trouble. This is often evident when a maintenance liable person goes into retirement. Income then decreases sensibly, but the maintenance allowance remains equally high, more so: it increases according to the index. The more painful it becomes if the maintenance entitled has a new partner in the meantime and nothing is lacking, and therefore does not actually need the maintenance payment, without acknowledging it.

So, so far, our right to divorce is still based on the Napoleonic principles: marriage as an institution must be protected as much as possible from the possible hesitation of the partners.

However, the emphasis should not be on the marriage itself. It is about respect for those who have entered into marriage. It is hard enough to have to determine that a dream is over and make the choice to end the marriage. The last thing the spouses need is a legislator who tries to bring them to different thoughts and makes it difficult and painful to make the choice. It is not the task of the legislator to have an inhibitory effect on the number of divorces. The choice belongs to the spouses, and only to them.

As the time was ripe to create a legal framework that accepts that not all marriages against life exist without having to designate a guilty, the VLD was the first to submit a bill in 2000 intending to introduce the faultless divorce. The aim was to simplify and accelerate the divorce procedure by abolishing the various divorce rounds and replacing them with a single ground, namely the permanent disruption of the marriage.

The parties could either jointly or unilaterally apply for divorce. The latter is important, because in our vision no one can be obliged to remain married. One must be able to determine that his or her marriage is over, even if the other does not think of it.

According to our bill, the maintenance should be granted to the spouses on the basis of the principles of necessity and support. We propose to limit the maintenance allowance to a maximum of twelve years, renewable if necessary. In our view, the maintenance is a transitional arrangement to enable the needy spouse to evolve towards economic independence.

For all clarity, it is not intended to let the woman who, by a common choice, remained at home to take care of the children, end up in poverty. The VLD has always provided that, if necessary, the maintenance allowance can be extended. Therefore, we do not propose an associative system. We are only asking for efforts to re-engage in economic life. For example, if someone proves that they have sought work but have not found it, the maintenance allowance can be extended.

The bill is an example that shows that we choose an open and tolerant attitude, which does not condemn people or stigmatize them. After all, we believe that people have the freedom to decide for themselves about their marriage and divorce. We respect their difficult decision. Liberals understand this by “respect.”

Taking into account the vision translated by the VLD in the bill, the original bill did not meet our expectations. We determined that the debt or fault was still retained, both as a basis for divorce and for maintenance. We determined that the maintenance was limited in time, in particular to the duration of the marriage, but that there could also be added the time of cohabitation before the marriage. Nor was it explicitly provided that the maintenance obligation would end in the event of a new marriage or cohabitation. Finally, there were no transitional measures for people who today sometimes for years, as I said in my example, pay lifetime maintenance.

During the hearing in the subcommittee, numerous hearings were organized. This showed, among other things, that a large majority of the parties requesting to draw the mistake as a basis from the divorce law. I refer, among other things, to the note of the Family Union, which was taken over following the hearings. The Association of Families also states that it has been advocating for years to proclaim divorce apart from guilt and innocence on the basis of the lasting disruption of the marriage and to make this basis the only basis for divorce.

The hearings also showed that a sort of hardness clause was needed in the area of personal maintenance allowance. I refer, among other things, to what Professor Senaeve has come to say about this in the subcommittee. He stated: “It is necessary to maintain a hardness clause for special cases where the granting of maintenance after divorce would put the sense of justice at the test. It would be ⁇ shocking that someone would have to pay a maintenance allowance for years to an ex-husband who has committed serious misconduct to him or to a common child.” However, no consensus was reached in the subcommittee. The views differed, even within the majority.

However, the discussion in the Committee on Justice brought concrete results and the draft was substantially amended. Thus, to our satisfaction, our amendment was approved that removes the error as the grounds for divorce. The amount of maintenance will in principle – or at least as stipulated by law – have to cover the state of need. In order to avoid a possible excessive break with the past, the court takes into account – this is often criticized here but it is indeed stated in the law – a number of factors such as the economic decline to fix a higher amount than the amount of the need that can be degraded degressively. The duration of the marriage will effectively also be the maximum period when determining the maintenance allowance. In this way, the legislation is in line with the current jurisprudence that already often assumes economic self-sufficiency and today the personal maintenance allowance is already often granted for a certain duration – three years, five years or more – whether or not degressively. At the end of the period, an extension of the personal maintenance allowance may be granted in the event of extraordinary circumstances. That is also important to prove and to make hard that this law is ⁇ not an associal law. In doing so, one must demonstrate that one is still in need and has made the necessary efforts to provide his own subsistence. This extension is necessary to avoid painful situations. As I said earlier, it is ⁇ not the intention of the VLD to leave people in the cold.

Let me now address my colleague Deom. The text now also stipulates that the maintenance will end in the event of a new marriage or a new legal cohabitation of the entitled.

Mr Deom regrets that this amendment was approved. The philosophy behind this amendment is that in a new marriage or legal cohabitation the new solidarity that replaces from the old marriage. You can say that legal cohabitation does not create maintenance obligation. I refer to Article 1477 of the Judicial Code, which clearly states that legal cohabitants contribute to the burden of cohabitation in proportion to their possibilities. Considering, among other things, this article, we are pleased that this amendment has been approved.

The error was limited to be retained in the window of the maintenance allowance. I have already said that the hearings showed that a hardness clause was needed. If, in accordance with the law, the spouse has committed a serious mistake that makes the continuation of cohabitation impossible, he cannot claim maintenance. In addition, the law specifically states that there is no margin for the judge in the case of partner violence. It is excluded from personal maintenance payments. This means that after the adoption of this law, you no longer need to prove any error in order to obtain the personal maintenance allowance.

An important step that was also taken during the discussion in the Justice Committee is that the EOT was retained, as was the appeal. Why did we vote for the preservation of the appeal? We retained it because it was not clear whether the decision regarding the personal maintenance allowance is subject to appeal. We do not consider it necessary to be able to appeal against the decision allowing divorce in itself, taking into account the fight against judicial lag. However, the text of the draft and the amendments do not provide sufficient assurance to appeal against part of the decision, in particular that part relating to personal maintenance.

Transitional provisions that were not provided in the original text are also important. The draft now provides that persons who pay their maintenance for an unlimited period of time can enjoy a maximum period of the duration of the marriage. The term begins to run from the entry into force of the law.

We regret that we stood alone with our view that persons who were previously convicted of lifetime maintenance benefits cannot benefit from these new legal provisions. Several amendments from our group were rejected by all the other parties. For example, we had proposed to give individuals who are now paying personal maintenance payments the opportunity to return to the court to request an adjustment of the maintenance obligation.

Another amendment was less extensive. This aimed to deduct the period of actual separation from the total duration of the marriage. Take my example of André, who pays personal maintenance after a 20 year marriage, which actually consisted of 10 years of living together and 10 years of actually living separately. In that view, we found that the period of actual separation – which is 10 years, 5 years or 2 years – should be deducted from the duration of the marriage. This amendment has not succeeded either.

Finally, we had proposed to give individuals the possibility of asking for the termination of their maintenance obligation if they had been married again or had been going to cohabit with another partner.

We had hoped, Mr. Swennen, to get the support of the sp.a-spirit faction for this, since we shared almost the same vision for the rest of the draft, but that support has not been for these three amendments.

What is our view of the final result? Given the view of the VLD on the divorce law and the original text of the draft, we can be satisfied with the text as it presents today. We will not claim that in our eyes it is the perfect text that no one should criticize, but it is a design that constitutes a major break with the old conservative divorce law and it means a big step forward.

What about the attitude of the opposition in this? Well, the opposition parties, cdH, CD&V, Vlaams Belang and Ecolo, which will be discussed later, have already announced that they will vote against the bill due to a number of criticisms, even though they have – yet as far as cdH and CD&V are concerned – submitted a number of positive points and they have begun their discussion with the notification that they could agree with a number of points. Their criticisms have therefore prevented them from being positive about the flawless divorce and voting in favour.

For example, they had the criticism that the design would increase the risk of hypocritical marriages. Colleague Verherstraeten has developed this argument. Well, we answer, as we did in the committee, that there is anyway a three-year review period and that in addition, in recent times, several measures have been taken in the fight against the hypocritical marriages in terms of punishment. I refer, among other things, to the draft currently pending in the Committee on Justice concerning the criminalization of forced marriages. I also refer to the legislation on family reunification between non-EU nationals which has become more stringent and the family reunification between EU nationals which is also being tightened. Furthermore, we believe that a divorce requested very soon after the marriage could actually be an indication that it is a false marriage.

Another criticism was: it can be separated too quickly. It is true that for the EOT the obligation to be married for at least two years before being able to divorce disappears. Our approach in this is: if two spouses want to divorce, who are we to prohibit them from doing so? Of course, it is logical that it is considered before divorce, but why impose a minimum term? We believe that it should be the partners who judge their marriage. Especially if they both agree in such a way that they can reach a divorce agreement, we as legislators cannot prohibit them from doing so.

One last criticism I would like to raise is that the bill would dismantle solidarity. This criticism is also unfair. There is solidarity, even after marriage. Only this solidarity is not expected to incite the former spouses to immobilism. Solidarity remains valid for as long as necessary and the ex-husband is encouraged to make sure he/she does not depend on that solidarity anymore. If one continues to handle the standard of living – I am talking about the size of the maintenance allowance – as among others CD&V wants, then this means, in our opinion, that marriage for some remains a win for life, and that can not be the intention.

We regret the role and attitude of the opposition. It would be courageous, for example, in the leadership of CD&V, to step out of their opposition role and support the design, even if it does not satisfy their wishes 100%. They could give a signal that they are effectively the family party they claim to be. Families where parents believe their marriage is over also deserve support and respect, but no legislation that makes it more painful and difficult for them. Furthermore, this bill was not pursued by Parliament and does not involve a strict majority-versus-opposition stance. Votes were divergent within the majority, including with regard to the appeal, the termination of the maintenance payment in the event of a new marriage or new cohabitation, as well as with regard to the transitional measures.

In connection with the Flemish Interest – I would also like to address them – we can be brief. The participation of the Flemish Interest during the discussion of this bill has largely been limited to – it has been repeated today – the communication that the debt is a basic concept of our culture, which even distinguishes us from the animal, and to the communication that the Flemish Interest advocates the preservation of the concept of debt as a reason for divorce. The Flemish Interest advocates a virtual world in which marriages last a lifetime and there are no divorces.

Mr. Speaker, Mrs. Minister, the majority has carried out important reforms and steps forward in the field of family law. After the law on equally distributed housing, the holebi adoption and the new descent law, there is now the innocent divorce. In this way, almost all points of the government agreement on family law have been realized.

It is clear that the VLD will approve this bill. We are already looking into the future, as colleague Swennen has done. We hope that in the next legislature work will be done on the reform of the procedure of liquidation and distribution, which should be the closing point of the fight against separations. In addition, we also believe that it is necessary to objectivise the maintenance payments and the maintenance payments for the children.

Mr. President, Mrs. Lahaye-Battheu addresses me directly.

I hope, in any case, that the judgment on what distinguishes us from the animals should not be understood as equating the spouses who want to divorce without guilt with anybody or anything.

Mrs. Lahaye-Battheu, we have also said that we welcome the preservation of divorce by mutual consent. For the above-mentioned form of divorce opt the people who can best put their emotions aside and who may also mostly use their minds to arrange the divorce in an orderly way.

The only thing we wanted to say is that the divorce, as it is addressed by the present bill, is not the right way. These are the consequences of what we have mentioned. For the rest, you do not have to look for anything.

We do not believe in a virtual world. You are going too short through the curve at that point. Many of my colleagues, including from my party, have experienced divorces. No one goes out of a divorce with pride, but in a divorce one can retain his human pride and dignity. I would like to add this to the report.

I remember that according to the Flemish Interest, a divorce without fault or guilt does not exist and the fault or guilt should also remain the core of the procedure.

Mr. Speaker, I was about to finish.

I have said that we hope that in the future the gap of liquidation-distribution can also be addressed. We also hope that there will be an objectivization of child maintenance, to avoid one child of the same age in the same, financial situation, 150 euros per month “worthy” and the other child, for example, 250 euros.

The problem of extraordinary costs should also be addressed. This is a fairly current problem. After all, today there are a lot of EOTs and also judgments that, in addition to the maintenance fee, also grant extraordinary costs. The distribution among each of both parents of the extraordinary costs occurs today, without a unambiguous definition, quite arbitrarily.

Mrs. Minister, you notice that family law is a living matter in which the work will never end. VLD was the pioneer of the faultless divorce. We are pleased that it can finally be voted today. We are also ready to face the challenges of the future.

The next speaker is Mrs. Gerkens. Then it is the turn of the Chairman of the Commission, Ms. Taelman.

Before I hear Mrs. President of the Commission, Mrs. Taelman, I will give the floor to Mrs. Gerkens.

We will then hear, if she wishes, Mrs. Minister.

Mrs the Minister.

Mr. Doctor, she always wants the “la” while I would like to have the “do”.

The [...]

I will not change any more, Madame.

You have the word, Mr. Speaker.

Mr. Speaker, I think I know that Ms. Onkelinx is at the origin of the feminisation of the titles in the texts.

In my opinion, we can really afford to say Mrs. Minister and Mrs. Deputy. This is a great change, if you want my opinion, Mr. Speaker.

I am a strong feminist, you know.

My experience makes me doubt. But I want to believe that you intend to.

I am not weakened by the wording.

However, it is curious that some people, including some women, are unable to accept this feminisation. It is true that the world was not made in one day.

That being said, I would like to make a first thought about this draft divorce reform.

During the previous legislature, my colleague Martine Dardenne, who was very active in the Justice Committee of both the Senate and the Chamber, regularly began her speeches by saying: "I am not a lawyer but, (...)".

I will allow myself to do like her because, frankly, when you are not a lawyer and you attend this kind of debate, this kind of explanation, you really do not want to have to divorce.

At the moment, you are the only non-lawyer to intervene.

It is quite astonishing that, for provisions that concern citizens in difficult moments of their lives, things are always just as complicated to understand and say.

After turning the problem in all directions, I came to the conclusion that, without the family court and without the individualization of rights that should have been examined before this bill, the divorce reform, which will be adopted and which is desired by all, even if it is not in the state, will remain a deception or, in any case, a mechanism that will not allow the citizen to have the control of the tools at his disposal.

I know that it is impossible for the legislator to meet all the expectations regarding divorce. Divorce is a difficult time on the affective, family, social and financial levels. The purpose of a law must be to ensure the observance of the obligations and rights of former partners, their children, with particular attention to the weakest of them.

The law will never allow to guarantee that the divorce proceedings and settlement of its effects will be done in a serene manner. But the legislator must do everything to ensure that this is the case.

Like my group, I am disappointed with the bill, because the reform of the divorce procedure should have been in the extension of other preliminary forms, necessary and expected by other partners. Among these reforms, obviously, is the establishment of the family court, in which all family disputes would be dealt with, and which would reduce the current dispersion of family disputes between the civil court, the judge of referred, the judge of youth, the judge of peace, etc. It is known, however, that a broad consensus exists in the political, legal and feminist circles and in the circles concerned with family law.

Another precondition that should have taken place in order for the reform to result in positive and satisfactory situations is the objectivation of the calculation of child maintenance claims. The determination of the amount of maintenance claims is an additional element that harms the relationship between parents. In this regard, proposals were submitted on the table; the Ecolo group had submitted one and the CDH, in particular. These tools had been coordinated with specialists: lawyers, family and child advocates, men, women, fathers, mothers, etc. The thorough examination of this point has been postponed.

As regards improved FESC financing and foster structures, from the moment when it is considered that both parents have the possibility, or even the duty, to have financial autonomy and the project stipulates that both spouses will, at some point, need to have financial means to live without maintenance pensions, the conditions of accommodation of children must be effectively improved.

As regards the individualization of rights, as long as the reference for the assignment of social and tax rights is household, women who have ceased to work to devote themselves to the couple, to the children, to the support of the husband’s activity, will remain financially dependent on the couple and therefore on the husband.

The last aspect that should have been considered is the time of marriage. It is of course that from the moment when separation is faster, easier and newlyweds can divorce very quickly, a awareness of notaries and civil status officers should be organized on marriage contracts and their consequences as well as on the impact of the dissolution of the marriage. In this regard, the way couples marry should be profoundly changed. Personally, I am horrified every time I attend a wedding. Indeed, the ceremony lasts a maximum of five minutes with a quick reading by the civil status officer of the mandatory text...

The [...]

I have to admit that those I saw were doing this way. Maximum of 5 minutes. This is horrible, because it is impossible in these conditions to become aware of the fact that this is an official moment, the holders and endorsers of this commitment and especially the consequences in the event of possible separation.

Not having tried to deal with this while we had the opportunity to do it and there were agreements on many points, this is really a missed opportunity. I am all the more disturbed by the fact that I have not tried to improve these points that this divorce reform was necessary and that separation procedures should be simplified when they are irreparable, even if there is no consent of both spouses. We also consider that, with the exception of serious misconduct situations for which a complaint can be filed, it is necessary to allow not to have to prove the fault of the other party in order to obtain the divorce, in particular when assessing the right to maintenance between former spouses. It is not this principle or this aspect of the project that I question here, but the fact that the preliminaries have not been drawn up.

For the project itself, I will allow myself to say what Ecolo would have wanted to find there and how we think it meets our expectations. This will allow you to identify the difficulties we may experience in the face of this project. We consider that the notion of guilt in the procedure for granting maintenance should indeed be removed and that it should rather be defined as compensating for the imbalance that the breakup of the marriage creates in the living conditions of each of the spouses. An alimony should only be due to the spouse who had no income or who had only low income during the marriage, due to his contribution to household expenses or to the education of the children.

The bill contains this provision and provides that this pension may be limited in time according to objective criteria. Ecolo insists that these criteria are varied and are not limited to the duration of the marriage. Equity requires that account be taken of the spouse’s occupational status and qualification, the spouse’s health status and age, and the participation of the spouse as an assisting or assimilated spouse during the duration of the marriage. Although it refers to it in part, the bill lacks clarity on this subject and risks leading mainly to a pauperization of women since they are generally the ones who have stopped or renounced working.

The time limitation of maintenance pensions may be justified in an emancipatory view, but then the right to income and social coverage must be guaranteed, regardless of the income from the maintenance pension for the former spouse in need. We return to this question of the individualization of rights that was necessary in advance.

Ecolo also considers that, in addition to divorce by mutual consent, the place and role attributed to the fault are too decisive and that the central character of the fault in the divorce proceedings must be mitigated, without, however, removing it entirely because the spouse who is the victim of a proven fault behavior must be able to claim the breakup of the union on this basis and not on that of a mere irreparable disconnection which does not involve an aspect of reparation. Ecolo therefore defends the proposal to replace divorce for de facto separation, a divorce due to irreparable separation of the spouses, while retaining the divorce procedure by mutual consent as a simple and consensual autonomous procedure.

Nevertheless, we consider that the bill is ambiguous when, in order first to eliminate completely the fault, with the exception of acts of violence, one finds that the reference to the fault or to the behavior making impossible the continuation of the common life appears in the right to maintenance pension and in the right to refuse the irreparable separation.

These ambiguities, it seems to us, are inevitable from the moment when the draft divorce reform is not in a logical sequence of reforms such as the installation of the family court where mediation, judgments relating to all family issues would be dealt with together.

Again, the question arises whether it would have been necessary to reverse the order of the works.

As regards the deadlines, it is important that the magistrates have the possibility to leave to the spouses, and even more to the abandoned spouse, the time to take the necessary step back to defend his cause and to begin as serenely as possible the process of accepting the rupture, while being the guarantor that this time must end at a time that will obviously always seem too short to the one who feels abandoned.

Fixing too short deadlines in a law risks making the procedure expeditious at the expense of everyone’s interests. The deadlines stipulated in the draft law to sign divorce upon application can be ⁇ short and can therefore result in significant social and economic problems for the divorce subject.

We propose that the deadlines provided for by law may be extended, with justification by the judge if necessary, taking into account the particular context of each separation and, in the event that that period would not have been sufficient for the spouse without income and without individual right to social security to have access to these rights regardless of the payment of an alimentary pension. I believe that the bill provides that the pension can be extended if the person, without doing so intentionally, is in a situation of need. On the other hand, the decision of divorce does not take into account the situation of the future former spouse who would not have had the time to acquire rights to social security, to replacement income independently of the maintenance pension. It appears that this point should have been worked out in advance.

It is important to avoid unjustified prolongation of procedures. Nevertheless, it must be guaranteed that both persons have access, after the divorce, to a dignified life since it is known that the divorce necessarily leads to a decrease in the capacities of each of the separated members.

In conclusion, we remain on our hunger in terms of the objectives pursued.

We believe that the guarantees are not sufficient to ensure a smooth process and the consequences of divorce. We would have liked that before this procedure, spaces for the treatment of family disputes were created. The reform of divorce is necessary; it must be done but it would have been more sensible to allow it to be properly carried out in a context that allows it to properly concretize itself. We consider that the government has missed an opportunity to approach the couple and family differently in all its dimensions, including conflict dimensions.

Furthermore, I can’t help but react to Mrs Lahaye’s intervention when she regrets the role of the opposition that would not vote in favour of the draft reform.

It is true that the discussions have not been blunt, that is the least that can be said. Hearing was held both in the Family Law Subcommittee and in the Justice Committee. I am not one of the parliamentarians who have been the most active in submitting texts, in particular because, in the formulations and in some legal approaches, I do not have the required skills. I listened to my colleagues in the opposition and found their interventions relevant. They tried to present interesting elements in the discussions. They introduced amendments; the majority also preferred to re-depose some of them rather than adopt them.

In this regard, the opposition played a constructive role. The final result is here, and we agree or not. So we will vote for, against, or abstain, but I don’t think we can accuse the opposition of having played a role of stupid and brutal opposition with regard to this bill.

Mr. Speaker, Mrs. Minister, colleagues, despite the fact that Mr. Lahaye-Battheu has already perfectly presented the content of my position and, in the case of extension, also the position of the group, I cannot afford to make a brief presentation on the subject. In fact, it is a draft that I have experienced this legislature for a part, both in the subcommittee Family Law and later as chairman of the committee for Justice.

I think I’m not standing alone when I say that Parliament has done very thorough work, not only in the subcommittee, where the hearings were held, but also during the substantial discussions in the committee.

I would like to refer for a moment to the note that Professor Frederik Swennen of the UA – colleague Swennen then always says “for all clarity no family” – gave to the committee. This note is exemplary.

He says, and I quote him, “It has long not looked good for that design. First of all, it could be blamed for a lack of vision because the disagreements over the preservation of divorce were obscured in a semi-fortunate compromise. Secondly, divorce at the request of a spouse and divorce by mutual consent were merged into a single procedure that was unattractive and opaque.”

He also refers to a so-called marsorder of the minister and of the government. I would like to strongly contradict this here. I think this has also been shown during the debates. We have been able to conduct a very open discussion about this and at no time - I can emphasize that from my position - there has been a marshall from the government.

He says: “To my pleasant surprise, the marsorder” – which I think there was no such thing – “has not at first sight led to emergency legislation for the clean appearance.”

As for this openness, I would like to thank the Minister of Justice for her willingness to listen. Beyond party boundaries, extensive discussion was possible and openness to everyone’s opinion was shown. That was ⁇ not easy in this case, because it is an emotional subject, in which everyone feels involved in some way.

Importantly, during the hearing, it was already revealed that the EOT had to go out. Most of them wanted to get into that. That is a very great progress. Furthermore, as has already been shown during the debate, several amendments have been made in the committee.

I will then proceed with the citation of Mr Swennen: “In the Committee for Justice, the above-mentioned flaws were corrected. The editing of the text has made great progress. Divorce by mutual consent is rightly ⁇ ined more or less in its present form. Finally, the possibility of claiming debt divorce based on behavior that makes it impossible to abolish the continuation of society.”

On the other hand, Mr. Swennen makes some criticism. It is therefore regrettable that in the press only that criticism and not the other concerns of Professor Swennen have been displayed. He criticizes and says that the debt divorce is actually ⁇ ined.

I would like to refute that. In the past, it was impossible without a global agreement, an EOT, in other words, where one often had very difficult discussions which also included the liquidation and distribution of the common wealth, to get out, even if they looked at it rationally and openly. Then the only possibility was either to prove the guilt or to go to a factual separation, but also there the guilt criterion collapsed, because the applicant party was always considered guilty, unless this could be refuted.

Now this is no longer needed. I would like to emphasize this strongly. Despite the fact that one could assume some guilty behavior in paragraph 1 of the conscious article, most parties have the possibility, if they do not reach a divorce with mutual consent, to move to the other possibilities of the law without having to prove the fault of the other party. It is more than a belly feeling, on which the Flemish Interest is based. It is a well-founded feeling that fighting divorces will be avoided for a large part in the future.

Mr. Speaker, I will decide. I think we have taken a very big step towards an open society, not only with this legislation, but also with other legislation, to which Ms Lahaye-Battheu has already referred. As far as the future is concerned, I can also join her: there will still be steps to be taken. Mrs Lahaye-Battheu, in addition to the reform of the settlement, the distribution and the maintenance for children, there is also a reform of the inheritance law on my wish list.

Mr President, very briefly.

I also said that of course we do not have a glass ball. However, one can speak of a belly feeling regarding any future fighting divorces and whether or not this will worsen. Again, we do not have a glass ball. I think it will get worse. The chairman of the committee may have a different opinion. Either we both have an abdominal feeling on the subject, or we have a reasonable opinion about it. However, it is not possible to blame us for that stomach feeling while telling ourselves how it will develop in the future. After all, Mrs. Taelman also has no glass ball.

The difference I wanted to emphasize is that I base my belly feeling on arguments and you don’t.

If this is a debate about abdominal sensations, I am worried.

I have listened to my arguments and that is not at all a belly feeling. These were reasonable considerations, based on human rationality.

You are the last speaker before I go on to discuss the articles.

What an honor you are giving me, Mr. President!

What a pleasure you have done, Mr. President!

Mr. Speaker, dear colleagues, I am committed to the institution of marriage, family and interpersonal solidarity but, moreover, to the harmony between spouses, including after separation, and to the protection of children who are non-voluntary actors in the difficult relations of their parents.

Kouchner says we cannot build people’s happiness. This is not the mission of politicians but we must do everything we can to prevent misfortune in relation to families in conflict. I think this bill is going in the right direction.

This reform has been expected for a long time. There is, indeed, a consensus on the need to reform laws, some of which have not been amended since 1804. It is sufficient, also to be convinced, to find that the Family Law Subcommittee examined, at the same time as the bill, more than twenty bill proposals. This proves that there was a broadly shared expectation.

Why Why ? Because the social development in this area is considerable. The figures are well-known: every year, in Belgium, there are about 30,000 divorces for 40,000 marriages. Socio-economic changes should also be taken into account. In this regard, I will talk primarily about the evolution of the status of women as a general rule and the socio-economic situation of women that has evolved widely, fortunately, even though steps still need to be taken.

But the philosophy underlying the text that is proposed to you today does not have the sole purpose of following the developments of Belgian society. It is also a matter of opening, a little more, the family sphere to a more peaceful way of resolving conflicts. It is about resolutely inserting ourselves in the will of a justice that seeks to soothe tensions rather than exacerbate them. Justice too often allows the theatralization of personal conflicts, which is not good for anyone.

“Everywhere in Europe,” one could read recently in a Belgian weekly, “we want to revise the divorce procedure in order to limit its most negative effects by depriving it of the Jewish-Christian notion of fault, source of confrontation between spouses and whose children pay the cost.”

The draft thus devotes the abandonment of guilt to the stage of the divorce, considered as a real right. In most cases, the judge will only have to establish the irreparable disconnection, most often by checking that deadlines have expired.

These deadlines are four and not difficult to understand, Mrs. Gerkens.

- If the request comes from both spouses and they have been separated for more than six months, the judge will issue the divorce immediately.

If they have not been separated for more than six months, they will have to appear a second time after a period of three months.

If the request comes from a single spouse, the divorce will be pronounced immediately in case of de facto separation of more than one year.

Finally, without de facto separation of more than one year, the divorce shall be pronounced after a second appearance at least six months after the first.

These are the four possibilities of finding an irreversible disconnection by the expiration of deadlines.

The judge may also pronounce divorce faster if he finds from the outset that the divorce between the spouses is irreparable.

Is this new procedure, which will be based more on facts than on feelings, like some claim, a repudiation? Is it tailor-made for men, as we could read it too? Do you think that if I had the slightest doubt about this, the feminist I am would have carried this text with those and those who worked on it in commission?

First, the fact that one of the two spouses can make a divorce on the basis of the unilateral will of one of the two spouses already exists in our law since Article 232 of the Civil Code allows divorce without cause after a separation of more than two years.

It must be admitted that today marriage is no longer a fixed institution. In most couples, when there is no longer love, it is necessary to put an end to the relationship and it is absurd to resort to legal coercion that aggravates the conflict. Then, repudiation, as it is generally understood, is an unequal institution that can only be used by man in violation of the most basic rights of women, which is obviously not the case here.

To those who fear that women will be the victims of this reform, in particular with regard to the right to maintenance, I would like to answer that it will be much easier tomorrow than today for the spouse in need to obtain maintenance after divorce. More question, in fact, to carry out a real journey of the fighter by trying to prove the fault in the head of his former spouse, since the project devotes a principle right to the maintenance pension. On the contrary, the spouse who has committed domestic violence will in no way be able to claim maintenance. What is more normal?

As obtaining an alimentary pension by the former spouse in need was facilitated, it was fair to no longer allow it to be due for life. Choosing a duration is necessary. The determination of a deadline always proceeds, to a certain extent, arbitrarily; we know this well. The choice made is that, except in exceptional circumstances that could justify an extension, the maintenance will have a duration equivalent to that of marriage. Thus, a short-term marriage will not have major financial consequences. On the other hand, when one of the two spouses – and it is still today most often the wife – has sacrificed his career to invest in a long-term marriage, he will of course be able to retain the help of the other on the long-term.

In the interest of administrative simplification, when the games are made and the separation is irreparable, the spouses will be exempt from collecting a number of administrative documents and the procedure can, as a rule, be initiated by request. Similarly, the spouses will be able, at any time, to confirm their agreements, even partial, during the proceedings.

In order to promote the pacification of relations between future ex-spouses, mediation will have to be encouraged by the judge, who may even go up to suspend the decision to allow the parties to start the process.

The initial draft was amended on an important point, on the suggestion of the government itself and following the hearings it was conducted. The mutual consent divorce procedure, as we know it today, is not integrated into the divorce procedure due to irreparable separation. Therefore, it ⁇ ins its own procedural structure.

However, some burdens of the mutual consent divorce procedure have been lifted. Thus, the conditions of age and duration of marriage were abolished. In some cases, the deadlines have even been shortened.

I take advantage of this to answer a comment, according to which there would be danger for white marriages. Of course not! As you know, a white marriage can be cancelled after divorce. On the contrary, a divorce that occurs very quickly can cause, in the head of the investigators, some useful presumption elements.

I will conclude by greeting the remarkable work done by the Family Law Subcommittee and the Justice Committee. In addition to the hearing of many experts and practitioners, the committee deliberately chose an open discussion, respecting the intimate convictions of each. These exchanges took time, but the topic was worth it. The government on its part, President Taelman has just recalled, has not shown any rigidity in this case, since it has itself proposed many amendments.

The bill that is submitted to you is a balanced project, the result of long reflection and exciting discussions. It should, I hope, in many cases lead to a calm in the conjugal conflict. It is also our duty, in the general interest, to advocate peace, even in the hearts of families, because it is a choice of responsibility, a choice also that protects children from conflict, those children who, they, have no choice.

In this sense, Mr. President, by protecting the little Valentines, this project fits well into the framework of this day!

(The applause )

(The Applause)

Thank you, Madam the Minister.