Interim divorce measures: how to obtain them quickly?

Faced with a separation that promises to be difficult, the urgency of protecting your rights and those of your children becomes a priority. However, between the theoretical deadlines of 15 days and the reality in Brussels which often requires a 2-month wait, obtaining provisional measures during a divorce can seem discouraging. The good news? With the right strategy, you can significantly speed up the process. Maître Innocent TWAGIRAMUNGU, experienced lawyer in Brussels since 2005, guides you through the essential steps to quickly secure your situation during this delicate period.

• Identify your needs precisely among the 4 legal categories of provisional measures (invoked emergency, deemed emergency, measures of article 1253ter/5, and measures of article 19) to effectively target your request
• Favor the summons by bailiff (200-300€) to obtain a hearing within 2 days instead of 2 months with a classic request to the registry
• Immediately gather your concrete evidence: recent bank statements, written messages, dated testimonials and certificate of residence less than 15 days old (required)
• Please note that the registration fees are only payable at the end of the procedure, making it possible to initiate the process even with limited financial means.

Understand the urgency of interim measures and choose your action strategy

THEprovisional measuresconstitute your legal shield during the divorce process. They make it possible to temporarily organize the separation by setting the essential rules: who stays in the family home, what amount of alimony will be paid, how childcare is organized. These decisions apply immediately and remain valid until the divorce is finalized. Article 1253ter/4 of the Judicial Code actually distinguishes four categories of measures: those where urgency must be invoked and proven, those where urgency is legally deemed, the specific measures of article 1253ter/5, and finally the measures provided for in article 19.

The judicial reality in Brussels requires making a crucial strategic choice. If the law provides for a hearing within15 days maximumafter the filing of a request, the congestion of the courts extends this period to approximately 2 months. Faced with this situation, two options are available to you: the free request filed at the registry or the summons by bailiff, faster but paying (between 200 and 300 euros depending on the case). A third little-known option exists: the joint voluntary appearance provided for by article 1138 of the Code of Civil Procedure, which allows total avoidance of summons costs if both spouses agree to appear together before the judge.

The optimal time to act?As soon as the agreement is seriously disruptedor that a spouse seriously fails in his duties. Don’t wait for the situation to deteriorate further. The judge will assess the urgency at the time of your request, and too long a delay could work to your disadvantage.

Please note:The structural shortage of magistrates at the Brussels family court regularly causes cancellations of hearings, even in cases of emergency. It is not uncommon to receive a letter stating: “Madam President is absent for medical reasons, and the Court is unable to replace her”. Anticipate this eventuality by providing a margin of safety in your deadlines and by maintaining regular contact with your lawyer to react quickly in the event of cancellation.

Step 1: Identify interim measures appropriate to your situation

The 7 main interim measures according to article 1253ter/5

Article 1253ter/5 of the Judicial Code specifically listsseven types of interim measuresthat you can ask for. The first concerns the establishment of separate residences and the allocation of family housing. The judge will examine several criteria: who owns the property, the respective income, the exercise of a profession in the premises, and above all the interests of the children which take precedence over all other considerations.

THEalimonyconstitute the second major category. Contrary to popular belief, you don’t have to be in need to get one. The court compares the respective living standards of the spouses and aims to maintain a balance, even without a precarious situation. This pension concerns both the spouse and the children.

The terms of exercise of theparental authorityand accommodation for children form the third component. These decisions determine who makes important decisions for the children and how their time is organized between the two parents. Imagine, for example, a father who works night shifts and a mother who is a teacher: the judge will adapt the accommodation to these professional constraints while prioritizing the stability of the children.

Finally, the prohibition on alienating real estate represents a crucial protection. This measure even applies to property belonging exclusively to one of the spouses. It prevents any sale, mortgage or pawning that could compromise the future sharing or financial security of the family. The court can also order a ban on moving the furniture or grant personal use to one of the two spouses, and even impose a security obligation or proof of solvency on the spouse who retains the use of the movable property.

Practical example:Madame L., a senior executive in Brussels, discovers that her entrepreneur husband has emptied their joint savings account of 45,000 euros and is threatening to sell their second home in Knokke. Thanks to an emergency summons, she obtained in 48 hours a ban on any transaction on their real estate, the obligation for her husband to justify the use of the 45,000 euros withdrawn, and a deposit of 20,000 euros on the valuable furniture left in the marital home. These measures allow him to secure the family assets while the divorce proceedings take their course.

Emergency conditions and judge’s assessment criteria

Although the emergency islegally reputablefor all requests for interim divorce measures, you must concretely justify it. The court evaluates several criteria: the seriousness of the breach of marital duties, the impact on the children, the immediate financial risks. A spouse who empties joint bank accounts or threatens to sell the family home clearly warrants rapid intervention.

The constitution of yourevidence fileproves decisive. Gather bank statements showing unusual withdrawals, threatening messages, testimonies regarding the children’s environment. The stronger your case, the more quickly the judge will be able to assess the necessity of the requested measures. For legal cohabitants, note that since the law of August 17, 2020, provisional measures are no longer automatically limited to one year: the judge now freely decides their duration according to your specific situation.

Step 2: Submit your application to the family court

Preparation of mandatory documents

Writing the request is the first practical step. Of thepre-printed templatesare available at the court office to make your task easier. Your request must contain your national register number and precisely detail each desired measure. This clarification is crucial: it is on this basis that your spouse will be summoned. For those who prefer to prepare their request in advance, a request model is also available in the standard documents on the Droitsquotidiens.be site, allowing for more stress-free writing at home.

THEcertificate of residencerecent constitutes the mandatory document to attach. This certificate, dated less than 15 days ago, must concern your spouse and your children. You will obtain it from your municipal administration. Without this document, your request will be inadmissible.

Don’t forget to collect all theevidencerelevant: pay slips to prove income, housing bills, children’s school fees, medical certificates if necessary. These documents will allow the judge to concretely assess the situation and set appropriate amounts. Regarding costs, please note that the scheduling fees are only payable at the end of the procedure, and not at the time of filing the request, which allows the process to be initiated even in the event of temporary financial difficulties.

Submission of the request and choice of procedure

Filing is made directly to the registry ofBrussels family court, located in the Montesquieu building, Rue des Quatre Bras 13. The registries welcome you from Monday to Friday from 8:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 4 p.m. Access for people with reduced mobility is provided through the main entrance.

Faced with waiting times, thesummons by bailiffrepresents the quickest alternative. This procedure allows you to obtain a hearing within 2 days, compared to several weeks for a traditional request. The cost varies between 200 and 300 euros, but this investment may prove wise if your situation requires immediate protection. For complex matters requiring in-depth legal expertise,support from a family law lawyerwill guarantee you a suitable and effective strategy.

Advice :If you plan to appeal the decision, anticipate considerable delays before the Brussels Court of Appeal. Waiting times to plead before the two French-speaking family chambers can extend until April 2024 depending on recent documented cases. This information is crucial to assess the appropriateness of an appeal in relation to a request to modify the measures before the first judge.

Step 3: Hearing, decision and monitoring of the measures obtained

Therepersonal appearanceis mandatory if you have minor children. This legal obligation aims to allow the judge to directly assess the family situation. Prepare to clearly explain your requests and answer the magistrate’s questions. The hearing takes place in the council chambers, that is to say in the privacy of the judge’s office, not in public hearing.

The course of the hearing follows a precise protocol. The judge listens first to the plaintiff, then to the defendant. Lawyers can assist their clients but thedirect speechof spouses remains privileged. The magistrate can also decide to hear children, depending on their age and the situation.

The measures pronounced applyuntil final divorce. Their duration is therefore not limited in time, contrary to popular belief. However, they can be modified in the event of new elements: loss of job, moving, change in the situation of the children. Article 1118 of the Code of Civil Procedure even allows the modification of measures up to the relinquishment of jurisdiction in the event of the occurrence of a new fact. You then have 15 days to appeal the decision if it does not suit you.

• The measures remain valid throughout the divorce procedure
• A modification is possible upon presentation of new elements
• The appeal must be filed within 15 days of notification
• Decisions apply immediately, even if appealed

The request forprovisional divorce measuresrepresents a crucial step in protecting your rights and those of your children during this difficult time. Between procedural complexities and legal delays, the support of an experienced professional often makes the difference. Maître Innocent TWAGIRAMUNGU, with his experience since 2005, offers an approach that is both rigorous and humane to these delicate situations. His Brussels office offers rapid handling of your file, attentive listening to your situation and clear explanations of your options. If you are going through this ordeal in the Brussels region, do not hesitate to seek their expertise to best secure your future and that of your family.