Divorce for irremediable disunity: how to build a solid case?

Did you know that in Belgium, 20,034 couples divorced in 2023, an increase of 3.6% compared to the previous year? When living together becomes impossible and you are considering divorce, proving irremediable separation can seem complex. The high cost of the procedure, which can reach €4,030.60 according to the League of Families, makes it all the more crucial to properly prepare your file from the start. In Brussels, Maître Innocent TWAGIRAMUNGU has been supporting couples in this delicate process since 2005, providing legal expertise and human support.

• Create a file combining several types of evidence (certificates, bailiff’s reports, residence certificates) because your spouse’s confession alone is never enough
• Document your de facto separation from the first day with official evidence, as the deadline is calculated until the day of the court hearing
• Avoid abandoning the marital home without officially documenting it, even if it is no longer considered a fault since 2007
• In the event of insufficient evidence, request a judicial investigation procedure which allows in-depth investigations by preliminary ruling

Understanding irremediable disunity according to Belgian law

Article 229 of the Civil Code defines theirremediable disunityas a situation which “makes it reasonably impossible for the spouses to continue living together and resuming it”. This notion, introduced by the divorce reform of 2007, replaced the old fault-based divorce and now offers a legal framework more adapted to contemporary marital realities.

There are two main routes to obtaining a divorce for irremediable disunity. The joint application requires ade facto separation of at least 6 months, while the unilateral request requires a separation of at least 1 year. Once these deadlines have expired, the law establishes an irrefutable presumption of disunity, which means that the judge must pronounce the divorce without the possibility of contestation. However, a little-known alternative allows these deadlines to be circumvented: repeating the request (with a minimum interval of 3 months for a joint request or 6 months for a unilateral request).

However, if you cannot wait for these legal deadlines, you will have to prove with precise facts that the disunity is indeed irremediable. This is where the creation of a solid file takes on all its importance, because the court will exercise its power of appreciation in a sovereign manner on the elements presented.

Please note:The court may propose a referral to the amicable settlement chamber to attempt mediation or other methods of amicable conflict resolution, thus avoiding costly litigation proceedings. This option remains open even during the procedure and can be requested by the parties or suggested ex officio by the judge.

Step 1: Identify the facts constituting irremediable disunity

The grounds recognized by Belgian case law

Case law has gradually defined the situations that can characterize irremediable disunity. THEviolent behavior or harassmentare frequently used reasons, as confirmed by the Civil Court of Brussels on November 9, 2007. Adultery also remains a relevant fact, validated in particular by the Civil Court of Liège on October 9, 2007 (the provisions of the Judicial Code relating to the finding of adultery by a bailiff remaining valid after the reform and may result in the loss of the right to alimony).

Continuous arguments and abandonment of the marital home reflect a profound deterioration of the relationship. Case law also recognizes less conflictual but equally revealing situations: living in separate rooms for several months, no longer having anything in common, or displaying totally discordant life choices. The judgment of the Civil Court of Liège of October 16, 2007 also accepts these reasons even when one of the spouses still thinks that reconciliation remains possible.

Mental health issues can also be cited. Asevere depressive stateor significant psychiatric disorders of a spouse, even without fault, may make it impossible to continue living together. However, these situations require a particularly delicate and documented approach. More surprisingly, a spouse can even invoke his own actions to justify the irremediable disunity (for example recognizing his adultery to speed up the procedure).

Concrete example:Mr. He produced exchanges of messages with his mistress, bank card statements showing hotel expenses, and testimony from his best friend confirming that he had told her he was living a double life. This recognition of his own adultery, combined with attestations from relatives describing the deleterious atmosphere in the marital home, allowed the court to note the irremediable disunity without waiting for the legal separation deadlines.

Specific requirements for de facto separation

If you invoke a de facto separation to prove irremediable disunity, several conditions must be met. The separation must becontinuous and uninterrupted: any resumption of common life, even brief, resets the counter to zero. A simple fortuitous separation, such as hospitalization or professional separation, is not enough. It is crucial to understand that the time limit for separation is calculated precisely until the day of the hearing and that the separation must be effective at the time of the first court appearance.

The effective desire to divorce must be reflected in your actions. The spouses must live in separate homes, which requires being able to document this precisely. This requirement often involves anticipating and preparing evidence from the start of the separation.

Step 2: Gather admissible evidence in court

Documentary evidence admitted

Article 229 of the Civil Code authorizes “all legal remedies” to prove irremediable disunity, with the notable exception of confession alone and oath. THEdomicile certificatesissued by your municipality constitute essential proof to establish different addresses. Keep carefully all written exchanges – emails, SMS, letters – which document the deterioration of your marital relationship.

Official documents have particular weight: police reports in cases of violence, previous judgments, bailiff’s reports for adultery. Lease contracts and energy bills in your personal name usefully corroborate the reality of separate homes. If you have undertaken couples therapy, the therapist’s statements on the failure of attempts at reconciliation may prove decisive. To significantly strengthen your case, adopt an evidentiary strategy combining certificates, findings, partial confessions, testimonies and, if necessary, a request for a judicial investigation procedure.

Practical advice:If your current evidence seems insufficient to convince the court, do not hesitate to request a judicial inquest procedure. This procedure, authorized by preliminary decision, allows the judge to order in-depth investigations: hearing of witnesses under oath, appointment of experts, forced production of documents. This option can prove decisive when your spouse refuses to cooperate or hides essential information.

The importance of testimonials and attestations

Third-party testimony often forms the backbone of a case of irremediable disunity. Requestwritten certificateswith people who directly witnessed the facts: family, close friends, neighbors, colleagues. These testimonies must be detailed, dated and signed, mentioning the full identity of the witness.

The professionals who supported you bring particular credibility: treating doctors, psychologists, social workers. Their expert view on the marital situation and its consequences on your physical or mental health can provide useful information to the court.

• Systematically document unsuccessful reconciliation attempts
• Keep traces of failed family mediations
• Gather the exchanges showing the refusal of the other spouse to renew the dialogue

Step 3: Finalize your file and avoid procedural errors

Building a complete case requires combining several types of evidence. Never settle for just one thing, no matter how convincing it may be. L’confession from your spousecannot constitute the sole proof of disunity, in accordance with established case law. Multiply the angles of approach: official certificates, testimonies, correspondence, findings. Be careful, however, to avoid the frequent error of abandoning the marital home without documentation, which can harm your file even if it is no longer considered a fault since the 2007 reform.

The choice of procedure significantly influences time and costs. The procedure by summons allows a hearing within one month but generates additional bailiff fees. The contradictory request, less expensive with a minimum cost of 187 euros, however lengthens the deadlines. Your lawyer will advise you according to the urgency of your situation and your financial means. Please note that the judge can order, on his own initiative or at the request of a party, a personal appearance of the spouses to attempt a final conciliation before pronouncing the divorce.

Prepare your fileupon filing of the request. The judge verifies the reality of the disunity based on the elements initially presented. If the separation deadlines are not reached, anticipate the scheduling of a new hearing: two months later if you can prove 4 months of separation out of the 6 required, or three months after the first hearing in the absence of any proven separation.

The divorce procedure for irremediable disunity requires legal rigor and human sensitivity. Maître Innocent TWAGIRAMUNGU, with nearly twenty years of experience, supports Brussels couples through this ordeal with professionalism and kindness. Herexpertise in family lawoffers a transversal approach, making it possible to anticipate all the consequences of divorce: child custody, alimony, division of property. If you are going through this difficult situation in Brussels, do not hesitate to seek their expertise to put together a solid file and best defend your interests.