Proposition 52K1803

Projet de loi modifiant le Code judiciaire quant à la répartition des dépens entre parties dans le cadre d'une procédure en divorce.

General information ¶

Submitted by

The Senate

Submission date

Jan. 15, 2009

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

civil procedure divorce legal expenses

Voting ¶

Voted to adopt

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

Abstained from voting

FN VB

Contact form ¶

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Discussion ¶

July 15, 2009 | Plenary session (Chamber of representatives)

Full source

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The draft submitted by the Senate tends to respond to the October 2008 judgment of the Constitutional Court which found that the expenditure regime provided for in Article 1258, paragraph 2, of the Judicial Code concerning the divorce reform was unconstitutional. According to this provision, expenses are fully borne by the applicant party when the divorce is ruled on the basis of Article 229, §3 of the Civil Code, whereas these expenses can be compensated between the parties in the case of other forms of divorce due to irreparable separation. This, in fact, constituted a discrimination between the different forms of divorce due to irreparable separation.

The proposal was first discussed in the Family Law Subcommittee. The drafting of the draft submitted by the Senate has triggered a number of discussions within this subcommittee which found it useful to hear university professors and representatives of bars on this topic. I refer to the written report for the content of these hearings, which made it apparent that the editorial chosen by the senators was likely to be the subject of divergent interpretations. That is why the subcommittee considered it appropriate to amend the text.

Long debates followed on the different modes of spending and the choice of one of them in compliance with the philosophy of the new divorce law. Finally, it was decided to make a distinction between the case where the divorce is sought jointly because of irreparable separation (in which case the costs are divided equally between the parties) and the case where the divorce is sought unilaterally because of irreparable separation (in which case each party will bear its own costs unless the judge decides otherwise taking into account the circumstances of the case).

The bill was subsequently returned to the Justice Committee, which decided to adopt the amended text with ten votes for and two abstentions.

I now come to my speech on behalf of my group. At the end of these discussions, it seems to us that we have achieved a balanced, fair and comprehensible text for all. We have had long discussions on certain terms.

The text also responds to the remarks of the Constitutional Court. It clearly defines two modes of allocation of costs: on the one hand, for joint claims and, on the other hand, for unilateral claims, while leaving a discretion to the magistrates for unilateral claims. In this context, my group is satisfied with this clarification and will of course support the project.

Mr. Speaker, Mr. Secretary of State, when we reformed the divorce in the previous legislature, in the sense that the error was replaced by the legal basis irreparable disruption, Open Vld stated that the error had fallen in two places in the text. This was in the first place as regards personal maintenance, where the law stated that a serious mistake stops the maintenance, and in the second place as regards the court costs.

In fact, the new Article 1258 of the Judicial Code provided for a different regime concerning the costs of the court for the different sub-faces of divorce.

In the case of divorce due to irreparable disruption, the costs were divided, unless otherwise decided. The divorce on joint application after six months of actual separation always resulted in the distribution of costs and on the last legal basis, divorce on unilateral application after a year of actual separation, the costs were always borne by the claiming party, without the possibility of the judge to deviate from this and without the possibility of a contrary agreement between the parties.

This article 1258 did not come without blow or blow during the previous legislature. It has also been the subject of discussion and amendments. I refer, among other things, to the explanation of the draft. On this point, among other things, the following was said. One must not lose sight of the fact that the purpose of the draft is to avoid the debt dispute as much as possible. It must not be that this objective would be compromised by a dispute over the costs whose use is in fact limited.”

It is a fact that despite all good intentions in practice, this new Article 1258 gave rise to and still gives rise to disputes and to a number of questions for a preliminary ruling addressed to the Constitutional Court, given the different treatment depending on the legal basis.

I don’t think we’ve literally discussed this in the subcommittee, but maybe it would be good to make the bill. If we talk about judicial costs in case of divorce, what costs are we talking about?

I go down the line. This may include the costs of the attestations that must be submitted at the time of the introduction - about 10 euros -, the costs of summons - about 250 euros -, the costs of roll right when submitting the petition - 82 euros -, the costs of expedition - about 10 euros -, the costs of notification - about 150 euros - and last but not least the basic judicial fee of 1,200 euros. We are talking about a maximum of 1,500 euros.

On 21 October 2008, the Constitutional Court ruled that there was an inequality between the cost scheme in the case of Article 229, § 1, on the irreparable disturbance and of Article 229, § 3, on the unilateral application after one year of actual separation. In both of the above cases, according to the Court, it is possible to speak of the imposition of the divorce of one to the other. It is not possible that the costs in both cases are regulated differently.

Mr. Secretary of State, colleagues of the subcommittee Family Law, we have worked in the subcommittee on the basis of the draft coming from the Senate and also on the basis of a number of bills, including a bill from the Open Vld.

Mr. Secretary of State, Mrs. Chair of the Subcommittee, at some point we were stuck. I think I can express it so. The Secretary of State, who is always very present in the subcommittee and hears us, had his own view on the aforementioned point, which was not entirely consistent with the view of the members of the subcommittee.

However, the hearings with the professors and with the representatives of the legal profession have shown us the light in the darkness. They brought us to a consensus. In particular, if the divorce is ruled on joint request, each of the parties shall bear an equal share of the costs of the court, unless otherwise agreed. In the event of divorce under paragraphs 1 and 3, each party shall bear its own costs, unless otherwise agreed or the court decides otherwise.

Mr. Speaker, Mr. Secretary of State, the Open Vld is satisfied with the aforementioned consensus, which is a reflection of what we wanted to regulate with our bill. We will therefore support the amendment submitted by us during the discussion in the Family Law Subcommittee.

Mr. Speaker, I will keep it very brief. After all, I can fully find myself in the relay that Mrs. Lahaye brought.

It has well represented the history of the way in which the present law was made.

We hope that in this way the comments of the Constitutional Court have been corrected.

It is a clear regulation. However, we will need to further evaluate whether this is the right arrangement.

Mr. Terwingen, that is immediately the shortest explanation of today.

I will be extremely brief. I would like to thank the members of the subcommittee. I am pleased that this text is submitted to you today.

I still do not recall the number of hours of work dedicated by the committee to solve a problem that is not difficult, to floor on a bill, submitted by the Senate and whose one sentence gave rise to so many discussions, aroused so much enthusiasm and aroused so much energy from the members. This shows how just justice is not simple, but it would really be necessary to work on this launch, because in the matter of divorce, many interesting bills have been submitted and I would like to speed up the work.

But it is challenging to see, when you invite four professors, two lawyers and I do not know who yet, the number of things that one can say on a sentence of the Judicial Code, in order to determine how to share the expenses, while questioning at the end of the works on the meaning of the word "expenses" that has always existed in the Judicial Code!

Justice is not simple. I can see that the Minister admitted.

Following the hearings, this bill has gone in the right direction. We do not deny that. However, there is still a very small risk that an innocent party – this still exists, despite the fact that this new legislation has been attempted to eliminate it – will still have to pay for the costs. This can only be done by an inattentive judge. This will not happen so much.

We will abstain, faithful to what we have said in the past about the irreparable disorder as the grounds for divorce. We do not believe that this is solitary, although the legislature has decided so at the time.

I would like to bring a technical element to the attention of my colleagues. Judicial costs are not included in the legal costs sensu stricto. In the future, lawyers will still have to ask in their conclusions to divide or charge the delivery costs, or to strike. At this point, another improvement may be possible, namely by setting notification costs under the scheme. In fact, sensu stricto, these are not court fees and are in fact excluded from the scheme. This could lead to discussions between the parties. This is only a suggestion for the applicants.

I will be brief because the discussions in the committee were quite lengthy. I just want to thank all members. Normally, when hearing is held, it brings out many opinions and helps people come up with new arguments.

Here, it is rather the opposite. The hearings allowed us to reach a balanced consensus, going in the right direction, it is true after very long discussions.

As soon as the application is joint, the costs are shared and as soon as it is submitted by one of the parties (§1 or §3), then each bears the own costs that he himself has incurred. This seems to me to be an excellent approach.

I would like to thank the members of the committee, especially the members of the Family Law Subcommittee, but also the people we have heard. They allowed us to reach a situation that I think is a good response to the Constitutional Court’s decision and a good advance in terms of law.