Change Edition

Getting divorced
Guide

Getting divorced

by Sarita Rao 9 min. 19.04.2020 From our online archive
A guide to Luxembourg's divorce processes, what you need to do, and the help and support available in the Grand Duchy
Divorce is by mutual consent or due to breakdown of the marriage in Luxembourg Photo: Shutterstock
Divorce is by mutual consent or due to breakdown of the marriage in Luxembourg Photo: Shutterstock

Not all marriages are made in heaven. In fact statistics show that in 2018 there were 1,230 divorces in Luxembourg, including those amongst the foreign resident population.

The law in Luxembourg relating to family matters including divorce, changed on 1 November 2018, bringing all matters under one jurisdiction – the family law court or “juge aux affaires familiales”.

There are 14 judges in Luxembourg City and a further three judges in Diekirch who specialise in divorce and family affairs. In most cases you will only deal with one judge, unless he or she needs to refer the matter to a triumvirate of judges (this is for very complex litigation or unprecedented matters of principle only).

If you think you might need some advice on marital or family issues, consider first the Luxembourg Mediation Centre which can provide impartial help and support in English, German, French, Luxembourgish, Italian and Portuguese. There are also many private marriage guidance counsellors.

Help during and after a divorce
There are several state institutions that can provide psychological help and family therapy during and after a divorce to ensure that both parties consider how a divorce will affect children and change the family dynamic. Divorce can be an overwhelming time, particularly for children. Often family guidance can help parents decide on the best outcome for their children, and to put aside personal grievances.

Parent and family consultations are available notably at the Familljen Center, Kannerschlass, AFP- Solidarité-Famille, Mamerhaff and Haus 89 and families can also seek private support from private family therapists.

The divorce process

Before the change to the law in 2018, there were three different grounds for divorce. Now there are two – mutual consent (“divorce par consentement mutuel”) and breakdown of marriage (“divorce pour rupture irrémédiable des relations conjugales”). We take you through the different steps for divorce procedures in Luxembourg.

Divorce by mutual consent

In the past, if you divorced on the grounds of mutual consent you had to be agreed on every point of the divorce including alimony, accommodation and childcare. You would meet the judge twice and these meetings would be six months apart, and if you could not agree on the terms of the divorce, the contract would not be pronounced.

Under the new law, the main difference is the single appearance before the judge, provided the agreement fulfils the legal requirements. You must have reached an agreement on all points to benefit from this procedure. You file a request with the family judge and you will receive a response within 15 days setting a date for your hearing, which will usually be within six weeks.

Assets

Before you appear before the judge you must draw up the distribution of your goods.

If you do not own a property, you can do this with a lawyer or draw up an inventory of your common possessions with your spouse and how they will be distributed. If you have real estate property in common, you need to visit a notary who will also draw up the distribution of goods. Both parties can use the same notary and lawyer if they are in full agreement on what should happen with their assets, but it might be advisable that each spouse consults a lawyer separately to make sure that their interests are equally protected.

Convention of Mutual Consent

You can apply for the divorce hearing yourself, but your Convention of Mutual Consent (or divorce contract) must be drafted by either a lawyer (“avocat à la Cour”) or a notary. The convention must be signed by both of you, and submitted together with the inventory and distribution of goods with your request. The Convention must state the details of agreement for childcare, alimony, residence, and how you will deal with debt, such as an existing mortgage.

What else should you submit?

You also need to include copies of your marriage certificate, the birth certificates of both parties plus any children you share in common, and a document stating your nationality, such as an ID card or passport.

If your case comprises an international element (nationality or residence), you can choose to divorce under a different national law. This choice of law must be stated either in a separate convention or in the Convention of Mutual Consent.

At the hearing

When you meet the judge, you can choose for your lawyer to be present (or represented by one of his/her staff members), or you can represent yourself.

Since you have agreed on all the terms of your divorce, the judge will pronounce your divorce judgement if he or she deems the legal requirements regarding the protection of the children and each party are guaranteed.

Afterwards your lawyer or notary must take this judgement to the commune to be added to the civil status register. Foreign nationals must also notify their home state of their change of marital status.

The judge will not divorce people if the parties do not make the changes the judge deems necessary for the fulfilment of the legal requirement such as child and party protection. A new hearing based on the modified version of the convention will then be scheduled.

Divorce due to breakdown of marriage

In the past, you could divorce on the grounds of the behaviour of one party and an emergency judge would provide a temporary decision on details such as residence, childcare and alimony. However the final divorce settlement could sometimes be quite different. You also had to apply for your divorce in a very specific way, first applying to the divorce judge and then to the emergency judge.

Filing of the divorce

If the divorce is filed by only one party, then the other party, who disagrees with the principle of divorce, can be granted a maximum of two delay periods of up to three months each, before the judge will pronounce on it.

If you and your spouse agree on divorcing and on several or all other matters, you can submit the areas you agree on by filing a joint request.

However, even if you agree on most things, you must each appoint a separate lawyer (also an “avocat à la Cour”) who must also attend the hearing in court or be represented by another staff member.

Hearings

At the first hearing, the judge will hear orally from both parties about their positions and demands.

The judge will try to find an agreement with the parties at the first hearing. To set up the best conditions, all evidence at this point will be neutral and will not include testimonies from friends, family or neighbours. The current system aims for spouses to reach agreement first before relying on the judge to make a decision.

If both parties cannot reach agreement, then a new hearing will be scheduled where each lawyer can plead using written evidence and testimonies and the judge will make a final decision.

If agreement is reached at the first hearing, the judge may also ask for written evidence from the lawyers on areas such as pensions rights debts. For example, when one spouse was working when they entered the marriage, but subsequently gave up work for family reasons such as childcare, and therefore has a deficit in their pension contributions.

Childcare

Parents are usually granted joint custody of the children. This is termed as “autorité parentale conjointe” and means that both parents must discuss and agree on major decisions about their children in common (so not children from a previous marriage or relationship).

Autorité parentale” covers major decisions for a child/children in common such as religion, school, educational orientation, activities, residence etc.

Child residence, visiting rights and alimony will be fixed according to the individual circumstances of the case and in the children’s best interest, ideally based on an agreement reached at the hearing, otherwise according to the judge’s decision.

Older children can also ask to be heard by the judge, or a lawyer representing only the child/children can act as a liaison with the judge and the parents. This lawyer will also be authorized to contact third parties (extended family, teachers, carers) to get a clearer overview of the situation.

Siblings

In general, it is preferable to keep siblings together. When justified by exceptional circumstances, siblings may reside with different parties. In this case, the judge will allot specific times when siblings must spend time together.

Emergency judge

When a divorce procedure has been filed, an emergency judge can exceptionally give a temporary decision about an extremely urgent matter that cannot await the first hearing.

Changing your divorce agreement

Once you have a final judgement, you can modify it but it is recommended that you enact it before a judge. Even if you agree with your former spouse to change childcare arrangements or alimony payments, if the judge has not agreed to this change, you can still be held accountable. For example, if you agree verbally with your ex-spouse to reduce alimony payments, your spouse can still hold you accountable for reduced payment if the judge has not validated this change.

If a change to the divorce judgement is contested, both parties will have to come before the judge.

Foreign residents

Where a case comprises an international element linked to nationality or residence, this can impact the territorial competence of a judge as well as the applicable law. Different rules apply for divorce, matrimonial system, parental responsibility and alimony.

Most foreign residents might want to submit their divorce to Luxembourg law. Alternatively, they can sign a written convention on the law they want to see applied to the different aspects of their divorce before filing for divorce. The choices of law are mostly limited to a few options by the European and international deeds and they are closely related to the criteria of nationality and residency of the parties.

Foreign assets

It should be noted that any foreign assets must be included in the inventory and division of assets, even if both parties agree not to liquidate them immediately. Therefore if you own a property abroad, you must list this asset with the notary or lawyer, but you don’t have to sell it. You can agree on the ownership (ie the proportion or percentage of ownership) and that you will sell it at a later point or leave it to your children.

Leaving Luxembourg after a divorce

If both parties agree that one party can leave Luxembourg with the children in common, then you don’t need to go before a judge, you can both register this with the commune.

If both parties don’t agree, then the party who wishes to leave Luxembourg must get authorization to take their children to live in another country from a family judge, as this will change visitation rights. You do this in the same way you would for any change to the original divorce contract.

This article is designed to help our readers understand the current terms of divorce in Luxembourg. However, it does not constitute legal advice and we suggest that readers visit a relevant legal professional for advice.


Get the Luxembourg Times delivered to your inbox twice a day. Sign up for your free newsletters here.