Opting for divorce on the grounds of irretrievable breakdown of marriage

Under Luxembourg law, married couples can divorce or request a legal separation (which does not end the marriage).

The aim of these procedures is to dissolve the bonds of matrimony or to terminate the obligation to live together. In Luxembourg, there are 2 types of divorce:

  • divorce on the grounds of irretrievable breakdown of marriage;
  • divorce by mutual consent.

Who is concerned

Applications for divorce on the grounds of irretrievable breakdown of marriage, or for a legal separation can be filed by:

  • one of the spouses; or
  • both spouses, if they agree on the principle of the divorce or legal separation.

How to proceed

Filing the application for divorce

The application for divorce must be filed by 1 or 2 lawyers with the family court judge (juge aux affaires familiales - JAF) of the competent district court. The application can be drawn up by:

  • one of the spouses only (unilateral application), if the other spouse:
    • does not wish to divorce; or
    • does not agree with the consequences of the divorce (custody of children, maintenance and support payments, etc.);
  • both spouses (joint application), if they agree:
    • on the principle of the divorce, but not on the consequences (custody of children, maintenance and support payments, etc.);
    • on both the principle and consequences of the divorce.

Supporting documents

The application for divorce must include:

  • a copy of the spouses' marriage certificate;
  • copies of the spouses' or the applicant's birth certificate(s);
  • copies of the birth and death certificates of any joint underage children;
  • a document attesting to each spouse's or the applicant's nationality;
  • any other document that could be deemed useful.

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 documents with the court, the spouses will be summoned by registered letter to attend a court hearing, which will take place within no more than one month and 8 days.  

The spouses must be assisted by a lawyer.

Provisional measures during divorce proceedings

The court may, at any time, on request, set provisional measures – that are applicable during the divorce proceeding – concerning:

  • the separate residence of the spouses;
  • the children's usual place of residence, and the visitation and accommodation rights of the parent who the children do not live with;
  • the maintenance and support to be paid to the spouse and the joint children;
  • the spouses' property, and the joint children.

The JAF's ruling (order) on the provisional measures will be sent to the spouses by registered letter.

If one of the spouses disagrees with the JAF's ruling, they may object to or appeal the ruling.

Proceedings

Hearing

The JAF will hear both spouses on:

  • the principle of the divorce;
  • the consequences of divorce (liquidation of the matrimonial regime, etc.);
  • the provisional measures during the proceedings, i.e. the separate residence of the spouses, parental authority over the joint children, the residence of the children and visitation and accommodation rights, maintenance and support, etc.

Unless the judge decides otherwise, the spouses may be represented by their lawyer at the hearing.

Family mediation

The spouses are entitled to seek family mediation to resolve their issues and/or reach an agreement. At the request of one of the spouses, the JAF may grant the spouses a time limit of no more than one month to familiarise themselves with the mediation process.

The spouses will then be summoned to attend a new hearing.

Agreement to divorce

If the spouses agree on the divorce, they will be asked by the JAF to reach an out-of-court settlement on the consequences of the divorce. Any agreement reached by the spouses must:

  • be in the children's best interest;
  • not disproportionately harm the interests of either spouse.

Disagreement on the divorce

If one of the spouses refuses the divorce, the JAF may, upon request, grant the spouses a time limit of no more than 3 months to give them an opportunity to seek reconciliation.

If need be, this time limit may be renewed for up to 3 months.

Judge's ruling

When the court acknowledges the irretrievable breakdown of the marriage, it will:

  • grant the divorce;
  • order the liquidation of the matrimonial regime;
  • appoint a notary, if necessary;
  • put an end to the provisional measures;
  • rule on the consequences of the divorce (main place of residence of the spouses' children, visitation and accommodation rights, right to enjoy the family home, maintenance and support for children and one of the spouses, etc.);
  • possibly grant one or both of the spouses an advance on the matrimonial assets or the common property.

Note: if the spouses do not agree on the liquidation of the matrimonial regime, the notary will produce a report containing their claims and points of disagreement. The court will then hand down a ruling on the difficulty of the liquidation, and send the spouses back to the notary to establish a liquidation statement.

Consequences of the divorce

For the joint children

The court will rule on:

  • whether parental authority over the joint underage children is to be held by one or both of the parents;
  • the residence of the joint underage children, i.e. alternating between both parents' home ('alternating custody') or at only one parent's home;
  • visitation and accommodation rights over the joint underage children;
  • the amount of maintenance and support for the joint children, based on their needs and the paying parent's financial capacity.

Spousal support

The court may order one of the spouses to pay the other one spousal support. The amount will be set based on the beneficiary's needs and the other spouse's financial capacity, and taking into account:

  • the spouses' age and health condition;
  • the length of the marriage;
  • the amount of time already devoted to, or to be devoted to, raising the children;
  • the spouses' qualifications and employment status in light of the job market, and their availability for employment;
  • the spouses' assets – both capital and income – after the liquidation of the matrimonial regime.

If the spouses are in agreement, the judge may rule that the support is to be paid in the form of a lump-sum capital payment, in which case they will set the amount and the conditions. The amount of the lump-sum capital payment is equivalent to the amount of the monthly support multiplied by the length of the marriage (in months).

In principle, the term of entitlement to the support may not exceed the length of the marriage. However, if the beneficiary can demonstrate that, on the expiry of the term of entitlement, they will still be in need, for reasons beyond their control, the court may extend the term.

The support:

  • will cease to be due and paid:
    • immediately, if the beneficiary remarries or enters into a partnership;
    • upon request to the court, if the beneficiary cohabits with another person;
  • will be revised, upon request to the court, if:
    • the beneficiary's or the support payer's personal situation deteriorates, provided that such deterioration is beyond the control of the party concerned; or
    • if the beneficiary's personal situation improves.

Application to purchase pension entitlements

During the divorce proceedings, either one of the spouses may request that the court calculate a reference amount so that they can retroactively purchase their pension entitlements from the Luxembourg general compulsory pension insurance scheme (régime général d’assurance pension), provided that the requesting spouse:

  • had been registered with the Joint Social Security Centre (Centre commun de la sécurité sociale - CCSS) for more than 12 months: such a request may not be filed by a spouse who has never worked in Luxembourg;
  • had stopped working or reduced their working time during the marriage, for a period of time ending no later than the date on which the application for divorce was filed;
  • is less than 65 years old; and
  • files the request before the divorce ruling is handed down.

Before the purchase application can be filed, the following conditions must be satisfied:

  • the spouses' matrimonial regime must be governed by Luxembourg law;
  • the spouses must have assets that can be divided between them.

The reference amount is calculated based on the difference in the spouses' income during the period of time in which work was stopped or reduced.

The spouse who stopped working or reduced their working time has a claim against the other in the amount of 50% of the reference amount.

Note: the spouse may forgo the retroactive purchase at any time during the proceedings until the divorce ruling is handed down, but not before the request is filed.

The amounts are to be paid to the National Pension Insurance Fund (Caisse nationale d’assurance pension - CNAP) within 3 months of:

  • either the closing of the liquidation and division process;
  • or the date of the decision setting the amount of the debt.

It is up to the spousal creditor to pay the CNAP the amount due; the spousal debtor may apply for a refund of the amount they paid.

Ruling on the marital home

Either one of the spouses may file an application with the court to be granted entitlement to the family home (even if it belongs to the other spouse), for up to 2 years, against the payment of an occupancy allowance (rent) to the other spouse.

The application must be filed:

  • if one or several of the joint children are under 12 years of age;
  • by the spouse:
    • with sole or joint parental authority; and
    • at whose home the children have their main, habitual residence.

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.

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

If the spouses were living separately on the day the application for divorce was filed, one or both of the spouses may request that the court postpone the effects of the divorce ruling to the date on which their cohabitation and collaboration ended (for example, to protect the interests of one of the spouses if, after the separation, the other depleted the money the spouses held in common).

Appeals

If one of the spouses disagrees with the ruling handed down by the family court judge, they may, depending on the case, object to or appeal the ruling.

Specific features of legal separation

The legal separation procedure is the same as the procedure for divorce on the grounds of irretrievable breakdown of marriage.

However, in the case of legal separation, the marriage is not dissolved, but the spouses are allowed to live separately.

When the spouses have been legally separated for 3 years, either one of them may file for divorce.

Who to contact

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