Divorce means that a valid marriage is dissolved by a court decision on the basis of events that occurred during the marriage. Divorce is never possible without the marriage being dissolved by the court. There is no such thing as an automatic ‘divorce’. Even if you want to divorce on the grounds that you have been living separately for two years, you will have to follow a legal procedure. The dissolution of the marriage is a fact from the transfer of this court decision in the registers of civil status.
The code recognizes five types of divorces. The most common are:
- divorce based on certain facts;
- divorce on the grounds of two years of de facto separation;
- divorce by mutual consent.
Divorce on the grounds of two years of de facto separation due to mental condition and legal separation occur to a lesser extent.
1. Divorce based on certain facts
Divorce on the basis of certain facts has to do with the violation of marital duties by one of the spouses (or both). The procedure is quite cumbersome and the assistance of a lawyer is in fact indispensable. The competent court in divorce cases is the court of first instance of the last marital residence.
1.1. What mistake?
Certain facts here mean a serious breach of marital duties of an offensive nature that is not covered until a reconciliation. Those seeking divorce must therefore prove that the spouse’s violation of marital obligations is serious and insulting. A possible defense by stating that a reconciliation has taken place in the meantime is only possible if the person relying on this can prove the reconciliation. The law accepts three facts for which a divorce can be invoked on the basis of certain facts:
1.1.1. Adultery
One of the spouses is guilty of adultery (originally: sexual intercourse with someone of the opposite sex who is not the spouse). Adultery is no longer punishable, but it remains a reason for divorce. If the defendant disputes this, it is up to him to prove the contrary. The adultery must be established by a bailiff. This is appointed by the president of the court of first instance at the request of a lawyer. This must adhere to several conditions.
1.1.2. Gross insults
One of the spouses is guilty of gross insults towards the other. A gross insult is an elastic concept, about which only the judge can judge. If he considers the facts cited to be sufficiently serious to constitute a gross insult, he will grant the divorce. In principle, this concerns any violation of marital duties that does not fall under the heading of adultery or acts of violence and abuse.
The judge will base his ruling on all circumstances of the case, including the offensive nature of the marital shortcomings with regard to the other spouse. However, it is important to know that the facts invoked must be proven .
1.1.3. Acts of violence or abuse
The fact that one of the spouses is severely abused (physically hurt, threatened, locked up, psychologically abused) is also wrong. These facts are best supported by a police report and possibly a certificate from the doctor, preferably immediately after the facts.