52K0899 | Demobel

Projet de loi visant à promouvoir une objectivation du calcul des contributions alimentaires des père et mère au profit de leurs enfants.

General information ¶

Authors: LE Christian Brotcorne, Clotilde Nyssens, Melchior Wathelet
Submission date: Feb. 28, 2008
Official page: Visit
Status: Adopted
Requirement: Simple
Subjects: maintenance obligation divorce child

Voting ¶

Voted to adopt: Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA LDD MR FN VB

Party dissidents ¶

Renaat Landuyt (Vooruit) abstained from voting.

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Discussion ¶

June 11, 2009 | Plenary session (Chamber of representatives)

Full source

Rapporteur Clotilde Nyssens ⚙

I will try to be brief despite the 125 pages of the report. First, I would like to thank the whole subcommittee on Family Law and the Minister responsible for Family Policy for this collective work that lasted a year and a half, to reach a consensus. It is interesting: it is collective and it is positive. We have done useful work.

Seven bills were reviewed. In each of them, we found some interesting ideas.

The first two concerned the objectivation of the calculation of the maintenance contributions; it was mine and Mrs. Gerkens. Other bills dealt with specific points on maintenance contributions and maintenance pensions.

How did our work go?

Obviously, we organized hearings: lawyers, professors, magistrates (Belgian and foreign), family associations. For information, and once it was not customary, a magistrates from the Netherlands came for a long time to deal with the subject; we were all seduced by this Dutch model. Once is not usual.

After the hearings, we developed a mathematical grid: a single method of calculation to determine parents' nutritional contributions to their children.

Should the judge be imposed a model of calculation or should he be given more freedom?

How then can we ensure a certain uniformization of the matter in order to avoid, before the magistrates, effects of unpredictability or surprise for parents forced to pay maintenance contributions to their children? We needed more transparency, we needed to help the magistrates, we needed to confection them tools: we found a system that, while respecting the freedom of the magistrates, tends to a tool of objectivation of these alimony pensions.

In summary, the text includes: primo, more transparency in judicial decisions; these decisions will now have to indicate a series of calculation elements from which the magistrates determine the amount of maintenance contributions.

Secondly, the Secretary of State responsible for the matter will establish a Commission of Maintenance Contributions, probably composed of magistrates, lawyers and persons competent in the matter in order to analyze the uniform jurisprudence in our country, to refine calculation tools to tend to statistics of cost of children and households; these statistics are intended to provide guidance to the magistrates responsible for such litigation. This committee may also eventually make recommendations to the executive to refine methods of calculation.

The text also includes a series of new definitions, for example the definition of what is meant by ordinary costs or extraordinary costs. The text allows the judge to force parents to open a "child account" on which maintenance contributions must be paid. The text changes the conditions of the delegation of amounts. It provides for formulas for full-right indexation of maintenance contributions, the possibility of increasing these depending on certain circumstances and, ‘last but not least’, transitional measures.

We have been careful in our work, since we submitted the text to the State Council. His opinion, which was positive about the philosophy of the textek, pointed, rightly, to procedural observations. We revised the text following the opinion of the State Council.

I will not be longer because everyone wants to intervene to make their personal idea valid in this collective work. In any case, I rejoice with the climate that has reigned in this commission without forgetting that, in order to amend some provisions of the Civil Code to calculate maintenance contributions, a year and a half of collective work was necessary in a chamber and that this text will probably be mentioned by the Senate. Judicial actors are likely to make comments. In fact, it seems to me that the Supreme Council of Justice is preparing an opinion on the subject that will be delivered in a few days.

If we did not opt for a method, a calculation grid, for example the Grid Renard, the Grid of Magistrate Wustefeld, the Grid of a family association (The League of Families or Gezinsbond), it is because none of the grids achieved the same results, none of the grids took back identical elements to calculate food contributions. Therefore, it is important to refine the work.

I will conclude with a note of comparative law. We are one of the only countries in Europe and even in the world that have not yet legislated on this subject. We have a Civil Code, which includes a line on maintenance contributions, which stipulates that parents must contribute, even after separation and divorce, to the education and maintenance of their children. But in almost every country that has caught our attention, diagrams, indicative tables, calculation elements or commissions help either the executive or the judiciary to perform this kind of calculation.

Sabien Lahaye-Battheu Open Vld ⚙

During the last legislature, we, as legislators, intervened in the residence arrangement of children whose parents no longer coexist by entering the concepts “equally distributed residence” and “inequally distributed residence” into the Civil Code. We are also taking action on the calculation of maintenance payments for those children.

The work on this subject is mainly done in the Family Law Subcommittee. The above-mentioned subcommittee is a small committee of nine members, which I especially welcome here. The Secretary of State also honored us with his presence, for which we thank him.

Colleagues, what are the problems with maintenance payments today? There are various problems. However, I will limit myself to listing four problems.

The first issue has already been mentioned by Ms. Nyssens. Today, we have to do this in particular with Article 203 of the Civil Code, which very briefly states: “Parents shall provide, in proportion to their resources, for the housing, subsistence, supervision, education and training of their children.” The aforementioned paragraph from the aforementioned Article 203 is the only directive and capstone under which the maintenance is agreed or under which the maintenance is determined in our judgments or judgments.

Colleagues, during the hearings we held, it was generally criticized that the aforementioned article is too concise and too vague. I refer, inter alia, to what the first chairman of the Court of Appeal of Mons, Mr Franeau, has stated in this regard.

The result of the aforementioned, very limited article is dual. First, there is the fragmented approach of our judges. Some judges use the Renard method, while other judges use the Family Alliance method. There are also other methods developed by lawyers. We have also heard the lawyers in question in the subcommittee. Other judges have their own method, which they use in their own judgments. Other judges limit themselves in their judgments to one sentence, which usually consists of the following: “Taking into account the financial support of the parents and the expenses of the child, the maintenance is determined to – for example – 150 euros per month.”

The amounts for maintenance payments expressed in the aforementioned manner may vary in similar situations, which Professor Senaeve has clearly pointed out to us.

A second consequence of this abbreviated Article 203 is an insufficient justification for the parents, for the maintenance obligators or for the maintenance entitled. We have heard about this, among other things, the first chairman of the Court of Appeal of Mons. He said, I quote from the report: “Today, some courts still fix the maintenance allowance in such a way that the parents concerned cannot understand the reasoning behind it.” For example, the speaker gave us a judgment of a particular juvenile court in which a father was imposed a maintenance fee of 500 euros per month in the first period, 375 euros per month in the second period, and then suddenly only 200 euros per month without further explanation.

That is the first problem: the shortness of Article 203 of the Civil Code.

A second problem: both in the agreements and in the judgments – in jurisprudence therefore – there is recently a distinction between the ordinary costs paid with the maintenance fee, and the extraordinary costs. Ordinary and extraordinary costs are concepts used in the field and with which parents must work today, but which are not known in our legislation.

Extraordinary costs today are ⁇ a source of great debate, especially if the concept was not detailed in the judgment or in the agreement. I refer, for example, to a school bill: is it or not an extraordinary cost factor? There are long discussions about this, procedures are being carried out, which is a second important issue.

A third problem: the equally distributed residence. This was introduced in the previous legislature as one of the possible residence arrangements. It means that the children stay with one parent as much as with the other. But what about the costs? Who pays the school bills? Who receives child allowance? Should a child account be opened? There are so many questions.

A fourth issue that I would like to briefly address here concerns the non-payment of maintenance. Even though maintenance goes for everything and one must always first make sure that one can pay the maintenance of their children even for mortgage loans and other expenses, yet today we note that a lot of maintenance is either late or not paid. This is an important conclusion that we as legislators had to do something about. Today, wage delegation is possible. You can ask the court to collect the maintenance from the source – the employer, the institution that pays the benefit – the maintenance. That is a possibility, but not a must: the judge is sovereign in granting or not granting that wage delegation.

What is the solution we found in the Family Law Subcommittee and the Justice Committee? I will discuss the four problems and the solutions we have developed.

First, for the purpose of determining the maintenance payments, we have introduced the objectivation of the maintenance payments. That is to say, the court is obliged to indicate a number of eight elements or parameters that he or she has tested and on the basis of which he or she has determined child maintenance.

You may wonder which elements or parameters are exactly. What should the judge check? I have the most important parameters.

What is the income of both parents? It is obliged to check this and mention it in the judgment.

What are the costs of the child? Are there any special or ordinary costs for that child? What is the average cost of the child?

How is the child’s residence arrangement arranged? Does it live in the same amount with one parent as with the other parent or is the relationship different?

What is the amount of the child allowance or other benefits paid to the child or children?

This is the objectivation that we want to bring to life with this law.

I think that this new article 1321 of the Judicial Code will require a certain discipline, not only for the judges, but also for the parties, which is not always there today. I refer to what we have heard in the hearings not only from professors but also from magistrates, in particular that today in court proceedings it is very frequent that the documents submitted are incomplete, that the documents relating to the incomes are outdated, that judges sometimes have to make interim judgments to require the parties to make clear about the financial situation of the parents or about the precise incomes, such as the child allowance that the child enjoys.

I am convinced, and I also warn, that after the adoption of this law, there will have to be a certain discipline – which is not there today.

Secondly, I refer mainly to the hearing with the Chairman of the Dutch Working Group Alimentatiennormen, Mr. Luiten. Colleague Nyssen said that we were impressed by what he told us. After those hearings, we came to a consensus conclusion that today in Belgium there is no ideal calculation model, as is the case in the Netherlands.

An important nuance is that the Dutch model came from the magistracy and not from the legislature. The Dutch magistrates have joined together and developed a calculation model that every Dutch judge applies today.

In Belgium, we do not have an ideal calculation model where the entire magistrateship is behind. In that sense, we have actually limited ourselves with this law to the establishment of a committee to prepare recommendations for the budget on child maintenance.

I will address this issue to the Secretary of State. Open Vld has stated from the beginning of the discussion that it is quite hesitant in the face of a fixed calculation model that all judges must use. Thus, they would become calculators. I remind you, dear Secretary of State, that you said in the Subcommittee on Family Law that work will be done in two steps. You said that if this law, with the objectivation of the maintenance payments, works well, the evaluation committee may not be needed and one can limit itself to further applying and assessing those elements.

You said, and I quote, “First of all, the magistrates must be obliged to make their decisions more reasonable. That alone would mean a whole step forward. The evaluation committee must then examine whether the new law works properly, on the one hand, and evaluate the various calculation methods, on the other.” But the agreement we have made is that if the objectification works well, the evaluation committee should not look for an ideal calculation model.

This is the first solution provided by this law.

The second solution, for the problem of ordinary and extraordinary costs, is that we have managed to enter into the law definitions of what are ordinary costs. That was a rather easy definition. It was more difficult to define what extraordinary costs are. In simple words it is said that costs that cannot be paid with the regular maintenance allowance.

I will again take the example of the school account, which has different costs. Ordinary reception and soup, for example, are ordinary costs, but sea classes or forest classes, for which the parent must pay 100 euros or more, can be extraordinary costs. These two definitions are now included in the law.

The third problem is the equally distributed accommodation and the arrangement of costs: who pays what costs for the children? With this legislative amendment, the principle of child accounting is entered into the law. The court may require the parties to open an account on behalf of the children on which each of the parents has authority.

The judge may also determine what should all be included in that account: the child allowance, possibly the maintenance contribution of each of the parents, other benefits. The judge may also determine the ratio according to which the costs shall be divided between the parents.

In our opinion, there is still a gap – and Open Vld will seek a solution – when it comes to a equally distributed stay where parents do not choose to work with a child account, but would like to see the child allowance distributed. They would like half of the child benefit to be paid by the mother and half by the father, so that each parent has a certain amount to pay the costs. Today it can still not be. Child allowance is paid to one of the parents. We believe that this element should also be regulated.

I am at the end of my speech. The fourth solution concerns the problems of payment of maintenance. With this legislative amendment, a generalized wage delegation is introduced. This means that if maintenance has not been paid for at least two months in the 12 months preceding the application, the judge must allow wage delegation. He cannot allow it anymore, he must allow it.

The ratio legis is the following. The Criminal Code literally states that a person who is two months behind maintenance is punishable. According to the analogy of the Criminal Code, the wage delegation, which already exists today as a possibility, must become an obligation as soon as one is in default with maintenance for two months or more.

Mr. Secretary of State, colleagues, I decide. With the legislative amendment, we hope to make the maintenance for children more clear and correct, as well as to be paid. Open Vld will approve the bill with great enthusiasm.

Valérie Déom PS | SP ⚙

A divorce or separation is always a painful time for families or former spouses, but also for children. Once the couple has made the official and definitive decision to separate, everything is obviously not settled. When there are children, in addition to the problems related to their accommodation, the issue of food contributions is one of the main apples of discord. If to this already troubled period come conflicts as to the amount of these maintenance contributions, the difficulties accumulate, especially as these questions go far beyond the time of divorce or separation to extend for years.

For a long time, the amount of food contributions has been a potential source of misunderstanding and division, as my colleagues have said earlier. When it comes to taking care of children’s needs, one could expect all parents to contribute voluntarily – and I would even say without counting. Unfortunately, the reality is quite different, especially when inequalities and misunderstandings surround the fixation of these contributions.

Indeed, one of the reasons invoked for the unfortunately numerous non-payment of food contributions is the lack of understanding and transparency in the fixing of these amounts. It was therefore more than time to find a way to objectively calculate these food contributions. By aiming for greater coherence, clarity, transparency and uniformity in judicial decisions, the goal is also to ⁇ greater parental support and thus effective payments, primarily for the well-being of children.

The bill we are discussing today responds to this concern of objectivation. As Ms. Nyssens said, this was preceded by numerous hearings and considerable reflection work. I would like to emphasize the joint work of all democratic parties in the final drafting of the text that is proposed to us. Following this joint work, the PS Group actively supports this proposal. As with the interventions in the committee, I would like to emphasize a few points.

First of all, the choice of a calculation method as such had to be done with great caution. However, we did not make that choice. It is known that existing calculation methods give, for the same situation, very different results. The hearings proved this. Therefore, it was not necessary for the new project to perpetuate the existing project that we wanted to remedy. We therefore support the choice made to give the King the possibility of fixing a method of calculation aimed at facilitating the implementation of the recommendations of the Food Contributions Commission which, as we have already said, is a completely new tool created by this text and which is inspired in particular by the example of the Netherlands.

Then, given the principle of the independence of the judge and the need to be able to adapt to the specificity of each situation, we repeated that it did not seem appropriate to impose on the magistrate criteria and/or a binding method of which he could absolutely not deviate. We have preferred to establish benchmarks and give the Commission the opportunity to make recommendations, benchmarks or recommendations from which the magistrate will always be able to deviate on special grounds. This is a contribution to the new text.

It is interesting to note that there has been a parallel to the work carried out during the previous legislature in the framework of the Bill on Equal Alternative Accommodation. We eventually followed the same type of philosophy: the setting of criteria and the requirement of a special motivation for better understanding.

I would also like to emphasize transitional measures that are often forgotten. However, this is often the most difficult thing in this type of matter. These new provisions will obviously apply to any new application submitted after the entry into force of the law. Any proceedings initiated before the entry into force of the law and any decision not brought in force of thing judged shall also be governed by the new measures. When new circumstances, independent of the will of the parties, significantly change their situation or that of the children, a request for modification of an alimentary contribution definitively fixed before the entry into force of the law will be considered as a new request and will therefore be subject to the new rules of the text proposed to us today. We wished that as many families as possible could benefit from this new law which seems to us to be a real step forward in the criteria and towards greater transparency.

You will have understood it, the PS group is quite satisfied with the text proposed today and truly hopes that it will allow for real objectivation and real transparency of the contributive shares and this, of course, always in the best interest of the child.

Mia De Schamphelaere CD&V ⚙

Mrs. Speaker, Mr. Secretary of State, dear colleagues, it is often claimed, for example by the press, that in these politically difficult times parliamentarians can mean very little, can realize little. Today, however, there is a draft that proves the opposite.

In the Subcommittee on Family Law, chaired by Ms. Nyssens, on the basis of proposals from almost all the political groups in this Parliament, it has been working for almost a year on improving the system of child maintenance.

This is, of course, an important social problem because it often involves arbitrariness, non-payment, on amounts that are felt to be unfair or on situations and measures taken by the magistrates and which aggravated the conflicting situation instead of mitigating.

The proposal, which has been drawn up, seeks to address these societal issues in a number of aspects, the lack of transparency, a sense of arbitrariness, the non-increasing contribution of the costs incurred by a growing child.

Also on the basis of the amendment made by our group, we are ⁇ pleased with this whole proposal, which hopefully will lead to a greater objectivation of the child maintenance contribution.

For example, a significant improvement is the special motivation obligation, which will increase the transparency and the sense of justice among the debtors. We hope that with the motivation obligation it will be easier to pay voluntarily.

There are also recommendations for budgeting costs and fixing contributions. They can serve as a lead in the negotiation, for example of divorce with mutual consent, and they also support the magistrates in the formation of their judgment. Thus, we hope to ⁇ more uniformity and legal certainty in practice.

In this way, the feeling of arbitrariness among people will be less experienced.

Automatic indexing is also an important addition to the existing system. The judge will also be given the opportunity to anticipate certain future events, such as the increase in costs for the child related to age or the transition of study. This prevents people from having to go back to the court to request an increase that could have been anticipated earlier.

I now come to a proposal from our group, in particular the child account. At the request of one of the parents, the court may impose the use of a child account. Recently, it was also pointed out that working with a child account can provide a solution for the distribution of child allowance, if the child stays equally with both parents. The child allowance will then be deposited on such an account. It shall also specify for which costs the amount shall be placed on that account and for which costs the account may be used.

We welcome this proposal. We thank the subcommittee, the Justice Committee and all active members. We truly hope that this will be an improvement for the situation of children and of newly-connected families.

Muriel Gerkens Ecolo ⚙

Dear colleagues, the Ecolo-Groen Group! It is an important moment and I personally think it is an even more important moment since Ecolo-Agalev has already been fighting for a long time in terms of child maintenance claims.

First there was the fight between 1999 and 2003 for the creation of a service of food claims aimed at guaranteeing the payment of these claims and being able to recover them. It was one of the first battles carried out by women's organizations in about forty years.

When concerned about the payment and compliance of a court decision regarding the payment of a claim from one parent to another, it was very quickly realized that it was also important to control and understand the estimate of the amount of these claims to overcome the feeling of injustice that dwelt in the one who had to pay them.

Together with my colleague Marie-Thérèse Coenen, I have organized for several years meetings with fathers, mothers, feminist organizations and organizations to work with parents in case of separation, with judges. We will never thank enough the judge Franeau but also Roland Renard because even if we did not opt for his method, this gentleman made things go forward; he fought for the objectivation of the calculation of food claims from the mid-1980s.

At the end of these meetings and talks, it seemed to us important that, in the event of the establishment of strict mechanisms for the payment of due maintenance claims, it was important that the debtor understands the reasons for the fixed amount and does not feel the victim of injustice.

That is why we had already submitted a bill in May 2004, a proposal re-submitted in October 2007. This proposal established the obligation to take into account the cost of educating one or more children and their age, in such a way as to assess the share of the family budget they need, all based on the income of the parents.

We enter here into a very long process, far from being completed. Indeed, I remember that, during the previous legislature, I had asked the Minister of Justice to incorporate the objectivation of the calculation of claims into the draft aimed at reforming the Divorce Act. The Divorce Act aims to improve and speed up the separation procedure. However, in our view, all matters relating to claims and the taking into account of the monitoring, education, maintenance of children cannot be handled at the same pace as for a separation. It was therefore important for us to incorporate these issues into the debate.

In addition, a study was requested, in particular, in 2006, from the University of Liège in order to evaluate the Renard method. But it was only when we started our work, about a year ago, that we had access to the results of the studies carried out and that we were able to start our work on the objectivation of the calculation of maintenance claims.

The text of the law resulting from the work that has been carried out and the hearings that have taken place does not, contrary to my wish, propose the use of an identical method for all magistrates. But the representatives of the judiciary made clear that they did not want a method to be imposed on them in order to preserve their freedom of judgment. This concern has been broadly expressed by the members of Parliament.

In my opinion, the amalgamation is excessive. Indeed, there are actually ways to work and methods can be developed and can be the subject of consensus. That said, a good method of course includes the freedom of judgment of the magistrates.

During all the work of the committee, the two were constantly opposed. I think it is excessive. If the magistrates really start to work properly, to follow the guidelines found in the law, that is to say, to determine the criteria and income and to motivate the decisions, we will ⁇ harmonization. A parent living in such an area of the country will no longer have to pay an alimony claim diametrically different from that of another parent living elsewhere and in the same conditions. The fact that such disparities are still known today is proof that the judges’ freedom of judgment shifts rather into a refusal to work properly with the citizen.

To build an effective and well-used method, the agreement of the actors is required. This is why Ecolo-Groen! He has co-signed, and therefore will support, the amendment resulting from the work we have carried out. There is no imposed method but there is an imposed motivation of the judge’s decision, which must stipulate both the nature and amount of the powers of each of the parents, the collection of ordinary costs and the manner in which they are assessed and the definition and nature of extraordinary costs.

With regard to this last element, Mr. Secretary of State, I would like things to be clear. In the articles of the proposal, we try to clarify what constitutes an extraordinary expense, i.e. an extraordinary expense, necessary or unpredictable, related to exceptional circumstances. I remember that we cited in commission these crispant elements that are used today by parents to consider whether an expense is exceptional or not. I would like to mention, for example, vacation camps or green classes.

For me, from the moment we know that schools organize green classes, that during the holidays there will be internships, that some things happen only once or twice a year but they happen, these expenses are no longer extraordinary expenses. They must be carried out at certain times, but if we continue to consider these regularly occurring events as generating extraordinary expenses, we will not have solved the difficulties encountered by parents with the new arrangements we will adopt.

We therefore have the obligation to be precise in our will, even though we cannot predict everything. It cannot be considered that a common thing falls into the category of "exceptional" or "unpredictable". I would therefore like to hear my colleagues again about these terms that we have indicated in our proposal and which clearly trigger different reading in plenary.

There is another important factor in the motivation by the judge of his assessment of the claim and that we provided for in the bill: the arrangements of accommodation that will be organized and decided by the parents and the resulting contribution in kind.

Another positive element of this proposal, which means that we will support it, even in the absence of a method imposed on magistrates, is the establishment of the Food Contributions Commission. Among its tasks is the evaluation and development of recommendations for the estimated costs needed to ensure accommodation, maintenance, health, supervision, education, training, child development and thus the fixation of contributions. If it finds that the new arrangements foreseen do not eliminate arbitrary variations in the amounts of contributions, this commission will be obliged to collectively develop, among the magistrates who will compose it, a method or better reference tools that would then become mandatory for judges.

This is, in my view, the guarantee element of a follow-up. The composition of this committee will be decided by the King. But the idea was to compose it only of magistrates as in the Netherlands, so that the results that will emerge from it are well appropriate to the judges who will have to apply it. It may, however, be interesting to allow this committee to confront, ⁇ episodically, or at least complementarily, its analyses, assessments and recommendations with a whole series of associations of persons accompanying separated parents and single-parent families.

I would also like that through this commission and this evaluation we can finally organize a collection of data. If an evaluation is to be carried out, the data must be collected. This does not appear in the texts and it would be wise not to have to enter them there and that this is done spontaneously. In Belgium, it is difficult to collect data, to keep it, to cross it, to correlate it. It is necessary to have the collection of the amount of claims, to know what they correspond to, to know whether they are paid or not, to know the judgments, the criteria taken into account to revaluate them, modify them. There is a need for a link between all these data and the food claims service, which is often lacking data and can only intervene when its services are used. There are tools in this area that can lead to greater efficiency.

Finally, I interpell you – and I interpell myself doing so – on the following point. We have introduced in this bill the possibility of the child account. It is a spontaneous existing practice, based on agreements between parents who decide to pay family allowances to a common account and arrange to use it. This works when parents agree around an educational project and in the sharing of costs.

In our proposal, we provide that at the request of one of the parents, the judge may order the establishment of that account. It is the judge who will determine what amount will be paid there, when, at what expenses it will be used, how to control its use and how to fill the possible deficit of that account.

As for families with low incomes, if you remember our first hearing regarding the assessment of the Renard method by the University of Liège, one of the elements highlighted was that in the case of a single parent, with low incomes, with the priority or majority accommodation of the child, the money of the maintenance claim and the income of that person are mixed in everyday life. It is therefore impossible to distinguish between what is dedicated to the child and what is dedicated to the family of which the child is a part.

Therefore, with the device set up through the proposal, I wonder whether we will preserve despite all the autonomy of the parent who hosts the child in the organization of daily life and the use of this money. Are we not at risk of putting these low-income single-parent families in trouble? If this is the case, should we not make arrangements to guarantee that autonomy and to set up that account only with the consent of both parents?

I ask you. I do not have the answer to this question.

I was arrested because I thought I was at risk of entering a control logic if the system didn’t work. As repeated in all our discussions, the child account only works if agreed and trusted between parents. It can be imagined that the judge will not impose such an account if there is no such relationship between parents; however, this decision is not controlled.

If the relationship deteriorates, one risks having a tool of control and ⁇ paralysis that will be used by one of the parents against the other while this money is needed in the daily life of the family and therefore of the child for whom this money is paid.

We are at the end of a process that lasted a year. We want the work to succeed. Nevertheless, if certain things should eventually be revised or deepened, we must give ourselves the opportunity to do so. It is known that other opinions will intervene, such as that of the Supreme Council of Justice. Some may believe that the reflection can also be continued through the Supreme Council of Justice or through the Senate. Or, one can say that the reflection has already been made and that my fears are unfounded. You will argue to convince me. On the other hand, one can also reserve a moment of reflection on a particular point.

I would also like to repeat our debate in two broader debates, the first of which relates to the Family Court. We are obviously looking forward to this project because we are well aware that it is important that all steps, related to both the assessment of these maintenance claims and the settlement of everything that results from a separation or divorce, are handled and analyzed by the same court, by the same partners and with a mediation that is integrated into the management and approach of all these difficulties that families encounter.

Mr. Secretary of State, I know that you are working on it and that we will eventually soon be able to witness the establishment of such a structure, even if it will be long and difficult.

I really want to thank Mr. Renard and all the magistrates who, before we did this work, agreed among themselves around one or more methods to try to objectivize, doubtful of their own ability to sometimes make decisions without sufficiently motivating them, especially on the basis of a priori and a lack of control when facing people in difficulty. It is also thanks to them that today we have been able to advance on this provision.

Marie-Christine Marghem MR ⚙

Mr. Speaker, my colleagues, the text we are discussing today is the result of a long work of consultation between the different political groups and also the professionals in the field.

This bill aims to address a concrete difficulty encountered by many separating parents: the misunderstanding and, therefore, the difficulty of accepting judicial decisions that establish the financial participation of one or another in the costs of education and maintenance of the common children. Indeed, some magistrates make short and laconic decisions, containing little or no explanation whatsoever on the reasoning they followed to result in the condemnation of the parent to this or that amount of contributive share.

The justiciable must, in our view, benefit from a clear and equitable justice, which implies that he is entitled to expect the magistrate to make a reasoned and understandable decision. This is all the more important because by understanding it, he will be more inclined to apply it spontaneously. This avoids the gravity and painfulness of forced execution of these decisions. In these matters that directly affect the interests of children, quarrels and discussions are not beneficial to anyone and ⁇ not to those themselves whose conversation and education is intended to be organized, that is, children.

This very regrettable practice of some magistrates has made legislative intervention necessary. The question to be asked was to what extent the legislator could or should intervene. The basic texts that led to this reform proposed that the amount of the contributive share be determined on the basis of a proportionality coefficient to be applied, except in particular circumstances, to the cumulative resources of the parents, according to the age and the number of children.

This coefficient of proportionality was to be determined by the King. In other words, the authors of the basic texts intended to include in the Belgian Civil Code the choice of a method for calculating the contribution shares in the costs relating to the common children that parents can claim to each other when they are separated.

Many and rich hearings were held and interesting discussions followed. The conclusion that has been imposed on all at the end of these discussions is that no calculation method currently practiced in the various judicial districts of the country, or existing and not yet practiced in these districts, is suitable to serve as a universal model. None of them can meet the specifics of all family situations.

In response to a recent intervention, I find it very difficult to find two rigorously identical situations. They demanded a uniformization of judicial decisions and an equal amount in all districts for the beneficiary or convicted person, if it is the same circumstances: the evidence is often only an apparent identity of situations, very different in reality.

There are always differences. And this is what often explains the differences in food contribution and arbitration from one district to another.

In short, no universal model can meet these specifics. However, it is a matter that relates to persons, their rights and obligations and which, by definition, requires an individual and case-by-case approach.

For the MR group, it was obvious that the legislator should not make the choice, necessarily arbitrary, of one method among others, ignoring the disadvantages of the method chosen and the advantages of those that are neglected. Each method has its advantages and disadvantages.

The important thing for my group and myself was to preserve the autonomy of the magistrates. It constitutes, in our view, a guarantee to best respond to the particular situation of each family while meeting the legitimate expectation of the justiciable who wants to understand the judicial decision imposed on him.

I am ⁇ pleased that this prudence has guided the colleagues of the Family Subcommittee and the Justice Commission, as well as you, Mr. Secretary of State, to ultimately lead to a two-phase reform.

In the first phase, the judge will be required to indicate, in the decision, various elements of the nature and amount of the faculties (financial, material, moral) of the father and mother, the ordinary and extraordinary expenses relating to the children they have in common, the modalities of accommodation and the contribution in kind of each of the parents.

Certain concepts have, on the same occasion, been defined – which was not the case before – in order to reduce the differences in assessment that they could result in judicial decisions. Finally, the judge must indicate in the decision how he has taken into account the various elements mentioned in the decision fixing the amount of the famous contributive part. By organizing the reasoning of the magistrate and imposing on him to answer certain objective questions, it tends to be more objective in the choice of the criteria taken into account and in the manner in which they are examined, while safeguarding the margin of manoeuvre and intellectual autonomy of the magistrate in his decision to bring a tailor-made solution to each family situation.

It is quite possible that this first step already allows to respond to criticism against the current system and encourages the majority of judges to better elaborate their judgment on this matter. This would be a great victory and the intervention of the legislator could thus be stopped. Indeed, it is not productive for the latter to make reforms for the mere purpose of reinventing hot water and for the pleasure of making legislative prose. It should not be neglected the fact that magistrates know in a very proven way all these questions and answer them on a daily basis with the jurisprudence and know-how that is theirs.

However, if this measure proved insufficient to provoke a change of mindset in the head of the non-cooperative magistrates – and there are still others – the text submitted to vote proposes, in the long run, a second phase, namely the creation of a Food Contributions Commission. This committee will be tasked with formulating recommendations for the assessment of the costs resulting from the application of Article 203, §1 of the Civil Code, i.e. the costs of maintenance and education of children and the fixing of the contribution of each parent, in accordance with Article 203bis of the Civil Code.

On the basis of the recommendations that would be issued by this committee, the King may determine a model calculation method that the magistrate shall apply, except to specifically justify why this method is not appropriate for the family whose situation he regulates. We inspired ourselves for this from the method chosen when drafting the altered hosting law: indicating a model while leaving escapes that will then have to be duly motivated.

This reform has also been an opportunity to adopt provisions that may seem less fundamental in terms of principle but which, in terms of effectiveness for the justifiable, will have a significant impact. I will cite a few.

- Delegation of sum that is automatically granted by the judge to any food creditor when the food debtor has waived his obligation to pay the food in whole or in part, for two terms, i.e. two months, consecutive or not, during the twelve months preceding the application.

The automatic indexation of the contributing share and its link to the consumer price index or the possibility for the judge and the parties to automatically adjust that contributing share to any other reference, which would therefore not be the consumer price index.

The possibility of anticipating significant circumstances or events in which, in the best interests of the child, the judge may, at the request of one of the parties, decide on the full increase of the maintenance contribution and facilitate the subsequent judicial debate on the evolution of that contribution.

The provisional enforcement of the decision on the maintenance contribution for those who would forget to apply for it.

- The possibility for the judge, at the request of a party, to order the opening of a special bank account on which the maintenance contribution will be paid. In this case, the arrangements relating to contributions and withdrawals to this account are also determined by the magistrate.

In conclusion, I believe that this is a reform that has been thought out and coordinated in the direct interest of the justifiable and that contains the flexibility necessary for its success.

The group will therefore support this text.

Bert Schoofs VB ⚙

Mr. Speaker, colleagues, for all clarity, the Flemish Belang stands positively towards this legislative amendment.

First of all, because there are guidelines included in the law, rather than dictates addressed to the judge to pay the maintenance fee, because they are tools rather than compulsory rates. I think we have taken the right path at that point because the judge is not a calculator.

The establishment of a Commission for Maintenance Contributions is also a positive thing. The opening of the child account, the definition of the extraordinary costs, it is all cited here. This is indeed a step in the right direction.

The Flemish Belang wants to make an important and critical comment on the legislation we vote today. It is not about the legislation itself, but the social framework within which it should be placed. We continue to assert that marriage has been broken out and that the status of marriage has also been broken out in this society. This leads to all kinds of social misstatements. They may not always be visible or directly related to some of the things that occur in society, but in any case we continue to regret the collapse of marriage as an institution, as the cornerstone of our society.

This philosophy of the majority of the parties in this hemisphere, from which we therefore clearly deviate, and the path that one wants to take, of course also has its repercussions on the divorce legislation. Marriage has become a unilateral cancellable contract in which one partner can quite easily get rid of the other partner thanks to the new divorce law. We have recently seen in the press that mutual consent divorce, the so-called EOT, has come under great pressure and we still find it the most civilized way of terminating marriage.

The most recent legal change in the field of divorce, namely the dissolution of marriage due to irreparable disruption, makes measures such as a child account more necessary than ever. It is very easy to get rid of the partner. Marriage is a unilateral cancellable contract, but it has not yet provided solutions for the children and for all the repercussions that a divorce entails. Therefore, the opposite is now done: partners can very quickly separate from each other and enter into a new family, but with it, the old relationship has not yet fully fallen into a good fold for the children and the financial settlement.

Unfortunately, divorce has increasingly become a legal figure that serves to free the individual from a contract rather than limiting the damage that the break-up of a family implies. Divorce is no longer aimed at the latter. That this legislation seeks to remedy this, we find a positive thing. However, the fact that this legislation needs to be adopted only adds strength to our arguments. To be clear, we vote for.

President Patrick Dewael ⚙

Mr. Landuyt, do you ask the word or not?

Renaat Landuyt Vooruit ⚙

Mr. Speaker, I take the word briefly to say that we must not exaggerate the merit of this legislation, in all humility. We speak here, what has been made in judicial practice.

I find it a little dangerous to include in our last article a method of the executive power. Thus, we reduce our Judicial Code to a kind of manual of the executive power. That is not good. I think that we should let the Civil Code and the Judicial Code be themselves, and formulate the rules that really need to be applied. We should not organize a sort of political arrangement until the establishment of a committee, which will then resolve what is stated in the title of the law. This is not a good legislative technique.

The title of the legislative text, in particular the objectivation of the maintenance payments, and all the communication that has taken place on this subject, are immensely misleading, since we actually in the legislative text in question give a blanco cheque to the executive power to draw up a method of calculation, because we did not find it in the Chamber. I think that, as a legislator, is not a healthy way of working.

Clotilde Nyssens LE ⚙

I can now speak on behalf of the CDH, since I have already intervened as a rapporteur. Of course, the CDH welcomes the vote on this text. We had already submitted this proposal in the previous legislature.

I would like to repeat that I am a signatory of this proposal, as well as my colleague Christian Brotcorne. This is important because Mr. Brotcorne is a lawyer and often pleads before the Court of Appeal of Mons. These are the judges of the Court of Appeal of Mons. Franeau and Wustefeld in particular, who first developed a calculation system and tools that can help magistrates calculate food contributions. Therefore, involving my colleague Christian Brotcorne is extremely important as part of this discussion.

This text is an advance. It was time to do it. Indeed, we were one of the only European, or even global countries, to have a legal vacuum in this matter, with the exception of one sentence in the Civil Code. In advance of this bill, there is the Divorce Act and other techniques to find an agreement that recourse to the judge, namely mediation. Of course, the new divorce law deserves an assessment. Already in the Family Law Subcommittee, we began, several weeks ago, the evaluation on procedural points; it will also be appropriate to do it on the content.

The number of mediation procedures must absolutely be increased as well as the number of extrajudicial procedures because, in this matter, finding agreements simplifies not only the task of the magistrate, but above all the peace of the families.

This text does not excessively aggravate the task of magistrates, since if the parties agree on the amounts, the judge will not have to justify and apply the series of tools made available to him through the bill. It is therefore favourable to agreements.

Mr. Landuyt, I do not know if you have understood the purpose of the reform. We have opted for a system of motivation and transparency of decisions and have referred to the Executive not to depart from the matter, but because we are convinced that the Dutch example is proof. You should have accompanied us, Mr. Landuyt, in the Netherlands to see how efficient the operation in this matter is there. In the Netherlands, there is a commission of magistrates, which meets three or four times a year, starting from statistical data that the Dutch have on the cost of the child, the life of households, the evolution of the price index, etc. Among them, they manage day-to-day to analyze the evolution of the cost of the child and families and to provide tools to the magistrates to refer to a uniform jurisprudence.

We have absolutely not given a white-seing to the competent minister for him to depart from the matter. He must establish a committee which itself will judge additional work, either that there will be nothing but recommendations to magistrates or tools consistent with the practice of magistrates, lawyers or family associations. Indeed, we were very impressed not only by the Dutch example but also by the work of the Dutch-speaking equivalent of the League of Families, the "Gezinsbond", a remarkable association in the service of families. Therefore, it is not at all a desire to defuse itself, to get rid of a matter. I invite you to read the report in this regard.

Renaat Landuyt Vooruit ⚙

Thank you for the applause. Allow me to say something first.

First, when it comes to traveling with Mrs. Nyssens, everyone knows that I love traveling. I regret not being able to travel to the Netherlands. I take note with a crap in the throat of the fact that many have missed me.

Second, the present legislation is a very good summary of better judicial practice in the matter. In this regard, it is a merit that a standstill is installed in this regard. I even share the idea that there should be a committee that tries to get a line in the determination of the maintenance allowance and that tries to record a method of calculation or to distill from the case-law. In the case of the termination fees in the labour law, this has happened without the need to set up a committee.

My comment is double.

First, it is not the first time, but in terms of legislative technique, it is not good that, for example, in the Judicial Code, a full method of processing and approach to the problem is literally translated. The Judicial Code was originally the Code of Procedures for Dispute Resolution. It is not intended to write down political agreements in a legislative text. Thus, no law has yet been written, as in the good, old times, laws were made.

Secondly, not only to prove that I am reading not only the report but also the relevant legislation, I would like to give the following.

Now in the text of the law it is stated that a judge will have to justify why he deviates from the calculation method, as established by the King. The above is literally in the legislation.

It is precisely written in article 1322 that a committee will be established that will examine all things. At the end it is written that the King will even suggest to the committee calculation formulas, in order to facilitate her work.

However, in an earlier article of the present text it is stated that the judge must take into account the method of calculation established by the King.

I repeat my basic comment. The title of the bill is misleading. In the present text, the maintenance fee is not objectivized. The present legislation gives the King a power to draw up such a directive.

That is a derapage in our system in terms of the duties of the legislature, the executive power and the judiciary. In fact, the present text gives the government a power to determine how the determination of maintenance by the judges should be applied.

That is quite extensive. It is therefore for the first time that I hope that the Senate will want to bow over the present text for a moment, because some things are not true.

Muriel Gerkens Ecolo ⚙

Mr. Speaker, Mr. Landuyt, I would like to say that although I am not a lawyer and although I consider that it is sometimes an advantage in this kind of situation, I do not understand the reading you do of the text. The judge is asked to justify the decision he is going to make, but that exists in lots of other texts!

When we worked on the 1965 law, we spent a lot of energy getting the judge to motivate his decisions so that the people in front of him understand them better. Some may find that this is not necessary because they consider that the judge does it by office but, in fact, this is not always the case. This is not a luxury.

It also says in the text that a commission will assess the situation and, if necessary, make recommendations. And it is from these recommendations that the King will be able to use binding measures that will apply to the judge. Therefore, I do not understand exactly where the problem you are talking about is because things follow a logical order.

The imposition of a method on the magistrate shall be made only if the latter does not properly perform his work. At that point, I consider that it is indeed the responsibility of the legislative body to make proper work those who must enforce the law.

Secrétaire d'état Melchior Wathelet ⚙

Mr. Speaker, I would like to highlight two points. In my general family policy note, there were two important points. The first was the willingness to work with Parliament, in particular with the Family Law Subcommittee. This is a good example of working in partnership with a proposal that brings together majority and opposition. As a Secretary of State for Families, I believe that we have helped move forward with fruitful discussions and exchanges.

Second point: for me, the objectivation of the contributive shares was important and this text tends toward more objectivation. I would like to tell Mr. The Judicial Code and the Civil Code must evolve. I find you very conservative about how to write a text and that surprises me on your part. One must be much more progressive in this matter by daring to demand this transparency in the motivations by the magistrates of the contributive shares. This need transparency in the way of calculation. It is necessary that the person who pays or receives a contribution share knows why such an amount has been fixed and that he understands it, that he may, if necessary, challenge it.

Why is it important? I will give you the three arguments that I think are fundamental. First, for more consistency. Whether you live in Tournai, Verviers, Bruges, Ostende or Hasselt, it is important that you pay the same contributive shares in the same family situation.

Second, there is more transparency. You need to know the reasons why you pay 100, 200 or 300 euros of contributional shares.

Third, the objectivation of the calculation should reduce conflicts. A better understanding of this diminishes the conflicting notion of these contributive share payments, with as a result ⁇ fewer unpaid. This seems to me important.

Where you are perfectly right, it is when you say that we have not been at the end of the process. Your position and Ms. Gerkens’ remarks demonstrate that the debate was far from easy. You claim that we are too intrusive in what is asked of the magistrate and Ms. Gerkens says that we might have had to go further by giving a reference calculation grid.

Renaat Landuyt Vooruit ⚙

Such confusion, that did your father deliberately. I do not want to blame you for that.

What I say here is that I agree with all the beautiful words in the report; that is not the problem. It is the law itself that is the problem. Everything that is stated there needs to be addressed more specifically, with which I agree. This is, by the way, the wording of what is already happening in judicial practice with better judges. It is good to include this at some point in a legislative text, in order to record it. I have no problem with this.

What I have a problem with is that, in a way of speaking, a political agreement to set up a committee, to evaluate, must be included in the legislative text and in particular in the Judicial Code. This is not a good legislative technique. That is the first comment.

I come to my second comment.