- The division of competences within the Family Court
- Referral to the Court
- Management of the preliminary hearing
- The presence of the parties in person
- The operation of chambers for amicable settlement
- The procedure for hearing children
- The provisional execution of decisions of the Family Court
The principle of reform, which the organisation of the French-Speaking Family and Juvenile Court in Brussels endeavours to meet, consists of grouping all the competences in family matters and applying the principle:
"One family, one case, one judge"
1. THE DIVISION OF COMPETENCES WITHIN THE FAMILY COURT
In Brussels, it has been decided to divide and regroup certain types of competences within specific chambers:
divorce, liquidation of the matrimonial regime, inheritance, filiation, civil status, annulment of marriage, disputes concerning non-consummated marriages and legal cohabitations and nationality.
The Juvenile Court retains competence in relation to the protection of juveniles and dealing with minors who have committed offences, as well as reparations for damage caused by such minors. This division will be reassessed with all the legal parties involved.
2. REFERRAL TO THE COURT
This is by joint or conflicting application or by summons. The Court may have to manage the initial document initiating proceedings which contains applications falling within the competences of several different chambers. The judge will disseminate the applications to the competent chambers, referring the case by hearing minutes. The procedure is identical to that used by the divorce judge, to refer to the judge in chambers, in the case of a “double trigger” application or summons before 1 September 2014.
In addition to the documents which must be produced, judges in the Family Court in Brussels request:
→ extracts from the birth certificates of the children concerned in the applications,
→ if necessary, proof of the transcript of the divorce,
→ certificates of residence and nationality of the parties and children or updated extracts from the national register containing these elements,
→ no translation is required for documents lodged in one of the national languages. For other languages, a legalised translation is required.
→ for indications available in the national register, copies of the documents suffice (except in adoption and civil status cases: birth, marriage or civil status certificate in Belgium). If such certificates are foreign, a certified copy with a legalised translation is required.
The referral to the Court is then permanent.
This referral permits a return to the Court, on proof of new elements or those unknown at the time when the judge ruled, for measures deemed urgent, namely:
→ separate residences,
→ parental authority,
→ accommodation rights and the right to personal relations,
→ maintenance obligations,
→ international child abduction,
→ marriage authorisations and refusals of legal cohabitation,
→ measures for the delegation of sums.
3. MANAGEMENT OF THE PRELIMINARY HEARING
The Law of 30 July 2013 establishes two obligations to provide information, one from the Clerk and the other from the Family Court:
The Clerk sends the parties:
→ the text of Articles 1727 to 1737 of the Judicial Code,
→ the brochure from the Federal Public Justice Service on mediation,
→ a list of approved mediators for family mediation in the legal district,
→ information on the initiatives for the settlement of conflicts in the district.
A prospectus has been drawn up by Avocats.be
At the preliminary hearing in the Family Court, the judge must inform the parties of the possibility of resolving their dispute by:
any other mode of amicable settlement of conflicts, such as collaboration or negotiation.
As for sending the amicable settlement before the chamber, either the judge takes the initiative, whether or not with the consent of the parties, or they apply for it jointly. Nevertheless, this option offered to the judge to order, by initiative and without the consent of the parties, that the amicable settlement be sent before the chamber is excluded when there is an application for certain measures deemed urgent (Article 1253 ter/3, § 2 new of the Judicial Code): in fact, the Law only provides for this, with the hearing of the case to be set within a deadline which may not exceed three months, with the consent of all the parties. Among applications deemed urgent are those linked to the question of separate residences, the exercise of parental authority, accommodation rights or the right to personal relations with a minor child and, lastly, maintenance obligations.
If the judge sends the case to mediation, he remains in overall charge and adjourns the case, sine die, to a later hearing.
If he refers to a chamber for amicable settlement, at the same time he loses his charge of the case to the judge of the chamber for amicable settlement.
If there is a failure of conciliation, which remains a voluntary and confidential process, that judge, who can never be the judge hearing the case, will send the case to the original judge.
The preliminary judge considers the agreements and schedules and sets down cases for later hearings.
When measures relate to a child of 12 or more years, the preliminary judge will not deal with the case by default since there must be an opportunity to be heard and the party must therefore be informed of this possibility of a hearing..
4. THE PRESENCE OF THE PARTIES IN PERSON
The new Law provides that the presence of the parties at the preliminary hearing is required for all the measures referred to in Article 1253 ter/4 § 2, 1° to 4 with or without minor children.
The parties must also be present at the hearing of pleadings when the measures concern minor children. When there is no minor child, the presence of the parties is optional. If there is overall agreement between the parties, their presence is only optional.
There is an exception to this obligatory presence, even at the preliminary hearing, for divorce for irreconcilable differences or for maintenance allowance after divorce.
It is also recalled that for divorce by mutual consent, if the parties prove they have had separate domiciles for more than six months, the procedure is then written.
Finally, the presence of the parties is obligatory before the chamber for amicable settlement.
5. THE OPERATION OF THE CHAMBERS FOR AMICABLE SETTLEMENT
The procedure before the chamber for amicable settlement is voluntary and strictly confidential.
All the judges, concerned by permanent referral, are called to sit in a chamber for amicable settlement.
It is provided that a maximum of three cases should be set per hearing. If there is immediate agreement, the prosecutor is invited to give a written opinion. When the opinion is received, the agreement is ratified by the conciliation judge without the parties appearing again.
In the event of agreement, if the parties want additional thinking time, a new appearance is then set before the conciliation judge to produce the definitive agreement, the public prosecutor being asked to provide a written opinion and ratification by the conciliation judge of the opinion is favourable, without the parties having to appear again.
If the conciliation fails, the judge sends the matter back to the original judge who can never be informed of the content of the negotiations.
6. THE PROCEDURE FOR HEARING CHILDREN
Article 1004/1 of the Judicial Code reforms the procedure for hearing children.
The minor who has reached the age of 12 years is informed by the judge of his or her right to be heard. This information will be sent in writing with a reply form.
The minor of less than 12 years is heard on request, on the request of the parties, of the prosecutor or automatically by the judge.
This hearing is obligatory if the application comes from the minor or the prosecutor.
The minor is entitled to refuse to be heard.
The interview takes place without the presence of anyone.
The report on the interview is appended to the case file and the parties can read that report, of which the minor is informed.
7. THE PROVISIONAL ENFORCEMENT OF DECISIONS OF THE FAMILY COURT
In application of Article 1398/1 of the Judicial Code, decisions taken are enforceable provisionally, unless there is a substantiated decision otherwise on the application of one of the parties.
This provisional execution does not relate to decisions relating to the status of persons.
The provisional execution also refers to the delegation of sums, in application of Article 1253 ter/5 of the Judicial Code.
The judgement may be objected to by any debtor third party on notification made by a bailiff, on the application of one of the parties.
The new Law makes no fundamental change, except that the procedure is now written for divorce by mutual consent, when the parties prove that they have had separate residences for more than six months.
Otherwise, if it is a divorce and an agreement on measures in relation to the permanent referral, the judge sends the agreement to the prosecutor for a written opinion. The agreement is ratified if the prosecutor’s opinion is positive. The divorce judge may send the parties before a chamber for amicable settlement.
Finally he may refer to a judge of permanent referral, it being stated that this will also apply in other matters such as the right to personal relations, linked to a filiation action, or to a maintenance action not declaring filiation.