Choosing a form of divorce or (de facto or legal) separation

Update in progress

Luxembourg law permits a married couple to either divorce or request a legal separation.

The aim of these procedures is to dissolve the bonds of matrimony or to terminate the obligation to live together. There are currently 3 forms of divorce in Luxembourg:

  • divorce for fault;
  • divorce for irretrievable breakdown of marriage;
  • divorce by mutual consent.

As an alternative to divorce, the law also provides the the option of legal separation, which does not automatically end the marriage.

Who is concerned

Luxembourg law on divorce and legal separation applies to spouses who have deliberately chosen to divorce of separate pursuant to an agreement.

In the absence of such a choice, divorce and legal separation are governed by the law of the State:

  • in which the spouses have their habitual residence at the time the case is brought before the court; or
  • in which the spouses have their habitual residence, to the extent that such residence did not end more than 1 year before the case is brought before the court, and that one of the spouses is still residing in that State when the case is brought before the court; or
  • of which the 2 spouses are citizens at the time the case is brought before the court; or
  • before whose courts the case has been brought. 

In that regard, it is important not to confuse the governing law applicable to a divorce with the jurisdiction of the courts to hear the case.

The following courts have jurisdiction over divorce and legal separation:

  • the courts of the spouses' place of habitual residence; or
  • the courts of the the spouses' last place of habitual residence, to the extent that one of them still resides there.
    Example: one spouse has moved to France, but the spouses lived together in Luxembourg. In that case, the spouse filing for divorce may commence proceedings in the Luxembourg courts on the condition that one of the spouses still lives at the last place of habitual residence in Luxembourg;
  • or the courts of the defendant's place of habitual residence.
    Example: one spouse has moved to France after having lived with the other spouse in Luxembourg; the spouse who remained in Luxembourg may commence proceedings either in the Luxembourg courts (see the previous example) or in the French courts;
  • or the courts of either spouse's habitual residence, in the event of a joint petition. This is the case in the event of a divorce by mutual consent;
  • or the courts of the petitioner's habitual residence, if the petitioner has resided there for at least 1 year immediately before commencing divorce proceedings.
    Example: one spouse left the marital home in Luxembourg and has lived in France for 14 months: they may then commence divorce proceedings there;
  • or the courts of the petitioner's habitual residence, if they have resided there for at least 6 months immediately prior to commencing the proceedings, and if they are a national of the Member State in question, or, in the case of the United Kingdom and Ireland, if they have their "domicile" there (the term "domicile" being understood within the meaning of the legal systems of the United Kingdom and Ireland).
    Example: a spouse who is a German national left the marital domicile in Luxembourg and moved to Germany 8 months ago: they may then commence divorce proceedings there;
  • or the courts of the Member State of which both spouses are nationals, or, in the case of the United Kingdom and Ireland, of the common "domicile" (the term "domicile" being understood within the meaning of the legal systems of the United Kingdom and Ireland).

 

How to proceed

Divorce for fault

A spouse may petition for divorce for fault due to excesses, ill-treatment, or serious abuse by one spouse towards the other, where such events constitute a serious or repeated violation of the duties and obligations of marriage and render the continuation of married life unbearable.

To petition for this type of divorce, it is necessary to prove:

  • either a serious violation by the other spouse of the duties and obligations of marriage rendering the continuation of married life unbearable;
  • or a less serious but repeated violation of the duties and obligations of marriage rendering the continuation of married life unbearable.

The proceedings must be commenced by a lawyer in the district court (tribunal d'arrondissement).

The investigatory phase consists of written pleadings. In other words, the court will examine the case through writings submitted by the lawyers representing the parties.

The party petitioning for the divorce must prove the serious or repeated violation by their spouse of the duties and obligations of marriage, and must prove that the violation renders the continuation of married life unbearable. This is often established through testimony.

Adultery, like domestic abuse, in principle constitutes a violation within the meaning of the law, enabling the petitioner to obtain a divorce for fault.

The spouses may request a temporary authorization from the presiding judge of the district court to provisionally live at separate addresses during the proceedings.

Divorce for irretrievable breakdown of marriage

Either spouse may petition for divorce in the event of a de facto separation which has been continuous and effective for at least 3 years, if the spouses' differences are irreconcilable.

The proof of continuous and effective de facto separation is directly reviewed by the District Court if both spouses live in the Grand-Duchy of Luxembourg. If the spouse resides abroad, the de facto separation can be demonstrated by the production of the petitioner's residency certificate (which can be obtained from the communal administration of the petitioner's place of residence) establishing that the spouses have not lived together for the previous 3 years, or any other document attesting to the petitioner's residence, if such a certificate does not exist in their current country of residence.

Divorce proceedings must be commenced by a lawyer in the district court.

Either spouse may also petition for divorce on the grounds of continuous and effective separation in the event of a de facto separation of more than 5 years if the other spouse has a mental disorder that appears incurable, and if the result of that situation is that the separation is irretrievable.

The spouses may request a temporary authorization from the presiding judge of the district court to provisionally live at separate addresses during the proceedings.

Divorce by mutual consent.

Divorce by mutual consent will not be granted unless the spouses have been married for 2 years and both spouses are at least 23 years old.

Spouses who have decided to seek a divorce by mutual consent will be required to sign, in advance, an agreement for divorce by mutual consent—for the drafting of which it is recommended but not required to use the services of a lawyer or notary—which must state the following in writing:

  • the residence of each of the spouses during the trial separation (in other words, until the divorce judgement is rendered);
  • the administration of persons and property, that is to say custody of any minor children born to the spouses or adopted by them, who are neither married nor emancipated, as well as visitation rights with those children, both during the trial separation and after the divorce;
  • the contribution of each spouse to the maintenance and education of said children;
  • the procedures for division of the movable community property. Community property must be liquidated by notarial deed if it comprises any immovable assets;
  • any maintenance/support to be paid by one spouse to the other during the trial separation and after the divorce.

Maintenance/support will automatically terminate if the recipient remarries, effective from the first month following the remarriage. It will be terminated upon request if the recipient cohabits with another person. It may be modified upon request if the health of either the recipient or the payer deteriorates, provided, however, that such deterioration is outside the control of the person to whom it occurs.

If neither spouse is a Luxembourg national, the spouses will be required to choose the law applicable to their divorce, pursuant to Regulation (EU) No. 1259/2010 (known as 'Rome III') on divorce and legal separation, transposed into Luxembourg law on 21 June 2012.

Parties seeking a divorce must then submit to the clerk of the district court, either in person or through their representative, a file containing the following documents (duly organized and indexed):

  • the original of the divorce agreement, duly signed and dated;
  • an extract of the spouses' marriage certificate;
  • extracts of the spouses' birth certificates;
  • extracts of the birth and death certificates of any common minor children;
  • certificates attesting to the spouses' current residences;
  • a legible copy of the spouses' ID cards or passports;
  • a copy of the spouses' prenuptial agreement, if one exists;
  • a copy of the document modifying the matrimonial regime or liquidating the community property, if any such document exists. The submission of such a document is mandatory if the community property comprises real property.

All of the documents must bear a recent date and must, if applicable, be translated by a 'sworn' translator (traducteur assermenté) into one of Luxembourg's official languages.

After filing these documents, and in response to a summons issued by the clerk of the court, the spouses will appear together and in person before the presiding judge of the district court, to whom they will state their wish to divorce.

The judge will make any comments considered advisable to the spouses, either together or separately, and will explain the consequences of the procedure to them. If the spouses persist in their request, it will be approved by the judge.

The judge will authorize them to live separately during the trial separation.

Six (6) months after their first declaration, the spouses will again appear together and in person before the presiding judge in order to repeat their wish to divorce. If they still wish to divorce, the presiding judge will pronounce the divorce.

In practice, the two appearances before the presiding judge, separated by a period of 6 months, are relatively informal and amount to an interview with the presiding judge that takes a few minutes.

Legal separation

Instead of petitioning for a divorce for fault or for irretrievable breakdown of marriage, the spouses may, on the same grounds, apply for a legal separation.

Legal separation allows them to live separately while remaining married.

Legal separation is not possible by mutual consent of the spouses.

The procedure must be commenced by a lawyer in district court.

Where a legal separation has lasted for 3 years, either spouse may petition the court to convert the legal separation into a divorce.

The spouses may request a temporary authorization from the presiding judge of the district court to provisionally live at separate addresses during the proceedings.


Who to contact

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