Proposition 52K1032

Projet de loi modifiant l'article 82, alinéa 2, de la loi du 8 août 1997 sur les faillites en ce qui concerne l'excusabilité des ex-conjoints.

General information ¶

Authors

CD&V Liesbeth Van der Auwera
LE Clotilde Nyssens
MR Jean-Luc Crucke
Open Vld Carina Van Cauter
PS | SP Thierry Giet
Vooruit Renaat Landuyt

Submission date

April 7, 2008

Official page

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Status

Adopted

Requirement

Simple

Subjects

divorce bankruptcy

Voting ¶

Voted to adopt

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

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Discussion ¶

June 19, 2008 | Plenary session (Chamber of representatives)

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Mr. Speaker, dear colleagues, it is a law of 8 August 1997 that introduced the principle of the excusability of the bankrupt to allow the bankrupt, under certain conditions, to restart a professional life and to resume an economic activity, even when not all creditors have been honored. This procedure is not automatic. This is only possible in certain cases. In 2002, a first amendment was made in order to pursue the original objectives of this new law and this in an interest of greater efficiency.

Thus the spouse of the bankrupt, who has personally committed himself to the debt of his spouse, is released from this obligation by the effect of the excusability. The extension of the excusability to the spouse was intended to counter a perverse effect of the practice, according to which the spouse is often forced to personally commit to the debt of his spouse. Despite the bankruptcy’s excusability, the creditors were therefore entitled to seize the property of their spouse as well as the common property in which the income from the bankruptcy’s new activity was registered.

A new amendment will be made to the law due to a judgment of the Constitutional Court of 12 May 2004, but it is above all another judgment of that same constitutional court that will draw our attention and which was issued on 7 March 2007. Indeed, the Constitutional Court considered in its last judgment that there was discrimination against the former spouse of the bankrupt, since the excusability was not provided for him. Hence the subject of the proposal submitted by our colleagues Giet, Nyssens, Crucke, Landuyt, Van Cauter and Van der Auwera, in order to extend the apology to the former spouse.

Very quickly, a very broad consensus came into place in the commission on this point to put the former spouse on an equal footing with the spouse. But a subsidiary question arose as to whether the excusability should not also be extended to the former legal cohabitant who also benefits from a special regime. This gave rise to more consistent and ⁇ interesting discussions.

After long discussions - it is referred to this subject in the written report - or even to subsequent interventions of some of our colleagues from the top of this tribune, the members of the commission eventually wished not to extend in the state the apology to the former legal cohabitant this, due to the many questions it poses and whose examination would require certain reflections that risked unnecessarily delay the adoption of the initially proposed measure: the extension of the apology to the former spouse and on which everyone agrees. So it was suggested to the author of this suggestion to include it in a new bill.

Furthermore, in the interests of legal certainty, the implementation of the new provision was raised. An amendment was voted unanimously, providing that this law applies to statements of excusability made from the date of its entry into force. However, on the banks, an amendment was deposited by the signatories of the bill to suggest that this law comes into force on the day of its publication in the Moniteur belge. by Mr. Giet will have the opportunity, in a few moments, to explain on this amendment submitted in public session.

Finally, it should be noted that the amended bill was unanimously adopted by the members of the committee responsible for commercial and economic law.

I will be relatively brief. I would like to thank the rapporteur, Mr. Hamal, for what he just told us. I welcome the unanimity in the Committee on Commercial and Economic Law to consider that it was necessary to extend the apology to the former spouse, even though legally, there might not be any obligation. We all agreed to report some injustice to not include the former spouse and that therefore this article 82 of the law of 8 August 1997 should be amended again.

In essence, I would like to remind, following the rapporteur, that we have looked at the issue of legal cohabitant and former legal cohabitant. By identity of reasons, one could imagine taking the same disposition. I will refer to the arguments developed in the report in order not to extend the provision referred to the legal cohabitant and the former legal cohabitant. There are various motivations in this regard. The opinions were shared; we will see well in the future if we need to go further. As for me, I considered that there was no real identity between the two situations, the spouse and the former spouse on one side, the cohabitant and the ex-cohabitant on the other. It cannot be considered that situations are exactly overlapping and therefore we have not gone so far. I consider that there are objective differences that justify different treatments.

I will finish by applying in time the text that is proposed to us today, a problem that justifies the amendment deposited on the banks.

The original bill did not contain a provision concerning the application in time. In a committee, on the proposal of the Minister’s representative, we voted for an amendment providing that it would apply to the excusability decisions that would occur after the entry into force of the law.

The committee unanimously made no objections and voted on this amendment. At reflection, however, it seems to me that by voting this amendment, we do not meet what we wanted through the text of the bill. Indeed, as I said, if this bill was deposited and voted, it is because we consider that today, I say today, there are unfair situations experienced by citizens in the situation of former spouse. Therefore, by leaving the text as stated at the moment, we will not resolve these situations. But that is the intention.

Therefore, an amendment was deposited, signed by the majority – even though some who would have wanted to sign could not do so for purely practical reasons – which specifies that the law is immediately applicable. Thus, the situations experienced today and which are not definitively settled could be covered by the new text.

This amendment has a second reason to be: all the amendments to this article 82 of the law of 8 August 1997, so far, have not been the subject of special provisions for their application in time. This means that they were immediately applicable.

I would like to emphasize that it is clear in the report of our work that the case-law, so far, has considered that the previous amendments to that article 82, in particular that which provided for the excusability of the spouse, constituted a procedure law and that they were therefore immediately applicable. Therefore, there should be no reason to act otherwise for this amendment.

This is the meaning of the amendment on our banks and for which I thank the House for voting right now. Maybe next week, Mr. Speaker, we will see for the vote in itself, as long as this amendment is adopted, which I hope.

For the rest, we are doing here a job that helps to correct unfair situations. This is sometimes a pleasant aspect of our parliamentary work.

Mr. Speaker, as Mr. Speaker did. Giet, I would like to thank the rapporteur and the spirit that prevails in this committee. Political divisions are largely overcome. We try to move forward, to find concrete solutions.

This proposal magnificently illustrates the possibility of practically resolving problems which, if ⁇ ined on a purely legal level, would not be resolved.

The least we can say is that excusability has already made a lot of ink flow. The Arbitration Court, which became the Constitutional Court, participated but also helped to make the reflection possible.

The excusability of the bankrupt was a thing acquired from the beginning for the bankrupt of good faith. It was about giving a second chance to the person who is not necessarily dishonest, even if he is bankrupt, so that he could start again in business without having a series of debts that pursue him. If that were the case, it would prevent the taste of risk, of the company. This problem was quickly solved.

Thanks to the Constitutional Court, it was then possible to settle the problem of free deposit – which was often also the spouse – and of the spouse who was caught up by debts. The bankrupt who thought he could escape the appeal because he was of good faith and because he had obtained the excusability, was indirectly caught through his spouse, the community. This has been modified.

Another change occurred in relation to the very nature of the debts. The Constitutional Court had stipulated that our text applies to contractual debts but not to legal debts. In other words, when the spouse was legally obliged, he did not escape. This is a debt to the tax, to the ONSS. This injustice has been corrected by the Parliament.

The current proposal is also a correction resulting from the Constitutional Court arbitration. However, in the present case, the Court has clarified that there is no matter of discrimination since the purpose of the law is to prevent the bankrupt being hit in their new resources. In this case, there is no risk since the former spouse no longer shares the property or income. Thus, according to the Court, there cannot be a problem of discrimination in this case.

On the other hand, there is a problem of inequality, of discrimination in fact. It is not normal for the ex-spouse who often did not participate in business or did not pay attention to everything that happened to be caught up in debt because he divorced.

This could violate the freedom to separate.

The reflection has been perfectly successful and this text must be voted quickly and enter into force immediately; this will solve a number of problems.

However, there remains a debate that is more than interesting on the intellectual level and on the level of equal principles. I said it in the committee but I want to repeat it here: I think we could have gone further. One can cite the author Rémy who had done a circumstantiated analysis of the matter, which has also been the subject of discussion in committee. I think we could have gone further, in particular by targeting the legal cohabitant, about which we sometimes find an indivision, but also by targeting the civil union convention, because we know that one can choose between the separation regimes or the community of property. We would therefore find ourselves in a case of identical species and I do not see, objectively, any difference.

Time will tell us whether I’m right or wrong, but I think the Arbitration Court would risk being brought in this case.

Our goal is to be practical and to do so, we need to vote as soon as possible. This will be done in a week because we will vote on an amendment soon.

We must pay attention to this, not just because we are interested in the rules of law or because different systems exist.

Mr. Giet, with all the friendship I have for you, I think that the future plaintiff at the Arbitration Court would find a reason about you. You spoke in committee about what you objectively think is a difference. You said that one of the differences is that legal cohabitation can also involve a situation of de facto cohabitation of people who do not necessarily maintain affective ties comparable to those that unite people who are not relatives. But, of some, one might say that they maintain affective bonds and in this case, in my opinion, there is no longer objectively any difference. That is why I believe we will meet again in a few months to change this law. But I believe that this will be done with the same unanimity that we have known in the committee.

Mr. Speaker, we will also support this proposal, the result of a long work that has been carried out in Parliament and which focused on the elaboration of the excusability of the bankrupt and the taking into account of the people who had helped take risks, in a way that I will call generous. In any case, I believe that this is the case when someone gives a caution to allow another person, and free of charge, to set up their business. There was also the question of spouses who, in the case of a common property, were directly involved and suffered this joint risk-taking and therefore the consequences of bankruptcy.

It is logical that the former spouse can benefit from the same protection and it is, in my opinion, interesting that this is clearly stipulated in a law. Indeed, in case of separation or divorce, the sharing of property can be very difficult and cause conflicts. By clarifying the situation, things are simplified, reassured and certain negative consequences are avoided.

Maybe one day we will have to go back to the question of cohabitants. That said, it is interesting that the files are not always closed and that they can evolve at will of human relationships.

That said, in addition to the nature of the relationships that can be different between cohabitants – it is not only an affective matter here – in principle, the property of the two people who cohabit are not bound together as is the case when one is married. In my opinion, the cohabitant therefore belongs rather to the category of persons who have paid a free deposit for an entrepreneur who has gone bankrupt. Others may have a different reading than mine and we will thus be led to re-examine the positions that have been taken. We will all be ready – I think – to improve the tool if necessary.

More broadly, a deeper reflection work should take place on the possible generalization of arrangements taken for spouses to cohabitants. In the commission, I cited the example of the status of the spouse helping for self-employed. In the discussion of this issue, I would have wanted to introduce amendments aimed, in particular, to allow cohabitants to benefit from this status. But given the complexity of the debate, this was not possible. In fact, it was important to create comprehensive social protection for the assisting spouse.

There is also some form of injustice. Since there is no remedy, we can say that it works. However, it seems to me that the legislative provisions have been very little modified and verified whether the cohabitant could benefit from the same protection as the spouse in a whole series of measures. This is obviously a large-scale work, but given that we will have to make "gender mainstreaming" in all our devices, we could also determine what it is in the case of cohabitants.

As for the amendment, there is no problem accepting it. In our reflections, we had at one point thought of leaving a deadline to give us time to inform people of the entry into force of this provision. On the other hand, it is known that the information will be automatic for the actors of Justice who intervene with respect to persons affected by a bankruptcy and therefore by an excusability.

Mr. Speaker, I quickly come to say to this tribune that we have supported the proposal that Mr. Giet has stated earlier and that we will also support this amendment. I would also like to remind, for this seems to me also important, that it is about proving equity between situations that seem to us to have to be assimilated or apprehended in the same way and to reserve an identical fate to the spouse of an excusable bankruptcy just as much as to the former spouse of the same bankruptcy. This is what it is about!

It is also important to distinguish between two periods in bankruptcy. First of all, there is the period of realisation of assets that affects the family in full swing because all common wealth is the pledge of the creditors. All this property will be realized by the curator for the benefit of the creditors. Then there is the period after bankruptcy where, of course, the bankrupt can now very widely hope to be excusable but this excusability could benefit only his spouse and not his former spouse, which was obviously screaming on the plane of iniquity and which deserved a legislative adaptation.

As for the surplus, I am not as pessimistic as Mr. The Crucke. I tell you very honestly. There will also be very certain things to be revised because this chapter on excusability was drafted in 1997 but has already been the subject of many legislative changes. However, I draw the attention of each of you to the fact that, in a proposal of law on the continuity of business that would change the concordat, this excusability does not appear. We will ⁇ have the opportunity to discuss this in the Commercial Law Committee.

In view of the unanimity achieved in the committee, we have now come to realize that self-employment is very important for our economy. If we want to stimulate this self-employed enterprise and give opportunities, it is important that we begin to flat down a number of problems, barriers that today arise in relation to this self-employed enterprise.

Colleague Giet, this does not only apply to the social status. That is very important. We have already paid a lot of attention to it and have also submitted a bill in this regard, for which we hope to reach a majority.

However, some risks should be reduced and reduced to acceptable proportions. This is the added value of this proposal, which hopefully will be adopted today. Indeed, it is unacceptable that the fact of being divorced during a bankruptcy procedure, which already has serious consequences for the persons concerned, would also entail the possibility of being subsequently sued for the debts that would not have been settled. This was a gap in the existing legislation. This will finally be put to an end today. It is an inequality that cannot be answered in any objective way. It is good that it is arranged today.

If we remove that inequality, that is the added value of the amendment, then it would be unfair to remove this inequality only from today and not to settle the current situations. It is therefore important that the situations that have not yet been resolved also enjoy the same change.

We also talked about the cohabiting partner or ex-partner in the committee. The situations are similar, but not entirely the same, since cohabitation does not create a community, with the consequences associated with cohabitation and acquisition of assets.

That the approach is differential there is legitimately to be answered. This is also why we do not specifically regulate this situation, because – colleague Crucke, I know that you doubt this – the situation of the cohabiting partner who has not entered into communion with the partner with whom he cohabits is comparable to that third person who has made a free deposit and who already enjoys that protection today. So it has already been arranged and we must not make the legal system even more complicated than it is today.

The proposal, as it is on the table today, can ⁇ enjoy our support. We will approve this in full with our group.