Opting for divorce by mutual consent

Last update 04.04.2022

In Luxembourg, there are 2 types of divorce:

Who is concerned

When spouses agree on the termination of their marriage and on all its consequences (parental authority, children's residence, division of assets, etc.).

There are no conditions as to:

  • the age of the spouses;
  • the length of the marriage.

Preliminary steps

Inventory of assets

The spouses must, beforehand and through a notary:

  • produce an inventory and an estimate of all their common movable and immovable assets;
  • divide these assets between themselves.

If the spouses have no assets to divide between themselves, a note is inserted in their divorce by mutual consent agreement.

Divorce agreement

Spouses who opt for divorce by mutual consent must have a divorce by mutual consent agreement drawn up beforehand. The agreement must be drawn up by a lawyer or a notary.

The agreement sets out the terms and conditions governing:

  • the spouses' place of residence during and after the divorce proceedings;
  • parental authority, the place of residence of and the visitation and accommodation rights over the spouses' joint underage children during and after the divorce proceedings;
  • the contribution of each spouse to the maintenance and upbringing of their joint children;
  • any maintenance/support to be paid by one spouse to the other during and after the proceedings. The maintenance/support can be paid monthly or as a lump-sum capital payment.

The agreement is subject to the approval of the court.

 

How to proceed

Submitting the application

The spouses or their lawyer(s) or notary(ies) must file the original copy of their joint application with the clerk of the competent district court. The application must be dated and must indicate:

  • the spouses' surnames, first names, dates and places of birth, professions and domicile;
  • where applicable, the names of their joint children;
  • the purpose of the application;
  • a brief statement of the facts and reasons for the application.

Supporting documents

The following documents must be included with the application:

  • the original copy of the divorce by mutual consent agreement, dated and signed by both spouses;
  • an copy of the spouses' marriage certificate;
  • copies of the spouses' birth certificates;
  • where applicable, copies of their joint children's birth certificates;
  • a document attesting to the spouses' nationality;
  • where applicable, the original copy of the agreement mentioning the law applicable to the spouses' divorce;
  • any other document that the spouses wish to submit (deed of separation of property, deed of liquidation and legal division of marital assets, etc.).

Certificates and documents issued by foreign public authorities must be legally certified.

All documents must be:

  • recent;
  • translated into one of the official languages of Luxembourg by a sworn translator.

Notice to attend the hearing

Within 15 days of filing the application, the spouses will be summoned by registered letter to attend, together and in person, a hearing before the family court judge (Juge aux affaires familiales – JAF). They must declare their wish to divorce before the judge.

The JAF will hear each spouse in the presence of the other. The spouses may be assisted or represented by a lawyer.

Note: if one of the spouses fails to appear for the hearing, the judge may order them to do so.

Judge's ruling

If the judge:

  • is convinced that the spouses' wishes are genuine, and that they have both given their free and informed consent: the judge will approve the divorce by mutual consent agreement and grant the divorce. The agreement is an integral part of the divorce ruling; or
  • has doubts as to the spouses' real wishes or their free and informed consent: the judge will hear each of them separately, in the presence of their lawyer(s).

The judge may also ask for the removal or amendment of clauses in the agreement that:

  • do not protect the children's best interests; or
  • disproportionally harm the interests of one of the spouses.

In the latter case, the spouses must present a new agreement within 6 weeks. Should they fail to do so, the application for divorce will no longer be valid. The spouses will then have to file a new application for divorce, if they still wish to divorce.

If the amended agreement still contains problematic clauses, the judge will refer the matter to a 3-judge panel. If the panel is of the same opinion, the court will not grant the divorce.

Should one of the spouses die before the final ruling granting the divorce, the divorce proceedings will be brought to an end.

Notification of the spouses

The spouses will be notified of the ruling by registered letter.

Appeals

Should the spouses wish to appeal a ruling that does not grant their divorce, they must file a joint appeal against the ruling within 40 days of the notification.

The appeal must be:

  • lodged as a petition that is signed by a lawyer;
  • filed with the clerk of the Court of Appeal.

The court clerk will summon the spouses by registered letter within 15 days of the filing of the petition. The spouses must be represented by their lawyers. However, the Court of Appeal may order the spouses to appear in person.

The clerk of the court will notify the spouses of the judgment by registered letter.

Appeals on points of law are admissible only:

  • against judgments that refuse to grant the divorce; and
  • if they are lodged jointly by the spouses.

Effects of the divorce

Where the spouses' assets and property are concerned, the divorce ruling will become binding:

  • on the spouses: on the date on which the application for divorce was filed;
  • on third parties: from the day on which the divorce is transcribed in the civil registers.

Within one month of the date of the divorce ruling, the former spouse or their lawyer or the notary must forward the divorce ruling, either by registered letter with acknowledgement of receipt, or by hand delivery with acknowledgement of receipt, to the following:

  • the civil registrar of the commune where the spouses were married; or
  • if the spouses were married abroad, the civil registrar of Luxembourg City.

The divorce is noted in the margin of the spouses' marriage certificate and birth certificates.

Good to know

Maintenance payments to the former spouse will no longer be due in the event of remarriage or a new partnership.

At the request of either one of the former spouses, the family court judge may:

  • revoke the maintenance:
    • if it is no longer necessary;
    • if the beneficiary of the maintenance is simply living with another person;
  • adjust the amount of the maintenance, if the beneficiary's or the payer's personal situation deteriorates, provided that such deterioration is beyond their control.

When the spouses agree to the payment of the maintenance in the form of a lump-sum capital payment, the maintenance cannot be adjusted or withdrawn.

Who to contact

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