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Thursday, 14 April 2022

Legal cohabitants: Can your ex-partner claim maintenance?

Larissa De Wulf

Counsel
Brussels

Carolyn Vanthienen

Senior Associate
Brussels

No maintenance expressly stipulated in the law for legal cohabitants

In a judgment of 14 March 2017, the Antwerp Court of Appeal awarded a personal maintenance claim to an ex-partner after the termination of legal cohabitation based on the obligation of support. The Belgian Court of Cassation overturned this decision in a recent judgment of 16 December 2021. The highest Court confirmed that, after the termination of legal cohabitation, the judge cannot impose an urgent and provisional measure, such as the award of a maintenance contribution, based on the obligation of support.

This recent judgment of the Court of Cassation simply confirms the Belgian law. Unlike married couples, who, pursuant to article 213 of the old Civil Code, have an obligation of support towards each other and may on that basis be obliged to pay a maintenance allowance, this same obligation was not provided by the legislator for legally cohabiting couples (in art. 1477 of the old Civil Code).

Legal cohabitants, like married couples, are, however, obliged to contribute to the expenses of the cohabitation in proportion to their means (art. 1477, § 3 and 221 of the old Civil Code).

Furthermore, the regime for legal cohabitants also does not provide for a specific provision under which the economically weak ex-partner can, under certain conditions, receive a personal maintenance allowance, as is the case for ex-spouses in article 301 of the old Civil Code.

On the other hand, as regards the parents’ maintenance contribution towards their children, there is no difference between ex-partners who were married, legal cohabitants or de facto cohabitants. They are all obliged to contribute in proportion to their means to the costs of the children (e.g. for housing, education, development) (art. 203 old Civil Code).

Are there other legal grounds on which a maintenance claim can be made after the termination of legal cohabitation?

Although the law does not provide for a statutory maintenance obligation for legal cohabitants, article 1479, third paragraph of the old Civil Code does mention "urgent and provisional measures justified by the termination". What the legislator means by such measures is not specified, which leads to discussion. Some judges and authors are of the opinion that, in the absence of an express statutory provision, maintenance claims between ex-legal cohabitants cannot be awarded. Others, on the other hand, consider that the aforementioned article can serve as a basis for awarding maintenance after the termination of legal cohabitation. Still others also seek solutions in customs in law (such as a natural obligation, a civil liability or fairness).

As long as the legislator does not provide an (explicit) basis or as there is no unambiguous position in the courts, the possibility for the ex-legally cohabitant partner in need to obtain maintenance remains limited, even if the claim would be a limited urgent and provisional measure.

In any event, the Court of Cassation made clear in its judgement of 16 December 2021 that a maintenance claim cannot be obtained based on an obligation of support between legally cohabiting partners.

Is there no other possibility for an ex legal cohabitant to claim maintenance after separation?

What we explained above, does not mean that maintenance between legal cohabitants is completely excluded and unthinkable. Legal cohabitants can also agree on protective measures in an authentic cohabitation agreement concluded before a notary (art. 1478, 4th paragraph, old Civil Code). Such an agreement can be useful to prevent a cohabitant from being left destitute when the legal cohabitation ends, for example, because he or she has given up his or her career in favor of family life.

In such an agreement, (future) legal cohabitants may stipulate rules that will apply to them from the date of their actual separation or from the date on which their legal cohabitation comes to an end, e.g. concerning whether or not to occupy the family home free of charge for a certain period of time or the granting of a maintenance allowance to the ex-spouse who is destitute as a result of certain choices made during cohabitation.

Are there other measures a judge can take after the termination of the cohabitation?

The law provides for the following possibilities:

  • The court can intervene to organize the divorce when the couple is still living together legally but the relationship is "seriously disturbed". For example, the judge can take measures regarding the occupation of the family home and the children. (Art. 1479 al. 1 old Civil Code). Note that measures that do not concern children cease immediately when the legal cohabitation is terminated. The cohabitation can be terminated by a simple declaration made by one of the cohabitants. This means that these measures can be of short duration.
  • The family court may also intervene after the termination of the legal cohabitation to order urgent and provisional measures justified by the termination of the cohabitation. This request must be made by one of the partners within 3 months of the end of the legal cohabitation. The judge determines the duration of the measures. In this regard, the judge may, for example, take measures concerning the children, the exercise of parental authority, housing, etc. (art. 1479 para. 3 old Civil Code)

As mentioned above, there is still much debate as to whether these legal grounds can also be used to obtain maintenance.

In the absence of legal certainty, we therefore advise (future) legal cohabitants who wish to safeguard each other in the event of a break-up to consider drawing up a notarial cohabitation agreement in which they can together, outside of any dispute, decide on maintenance payments that they deem reasonable and fair in the event that the cohabitation is terminated in the future.

Larissa DE WULF, Counsel (larissa.dewulf@tiberghien.com)

Carolyn VANTHIENEN, Senior Associate (carolyn.vanthienen@tiberghien.com)

Larissa De Wulf

Counsel
Brussels

Carolyn Vanthienen

Senior Associate
Brussels
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