Living in Luxembourg: Divorce
Divorce can feel like uncharted territory as an expat. Here are the steps to take when filing for divorce in Luxembourg.
The divorce rate in Luxembourg is around 1,000 divorces per year, and roughly half of divorces in Luxembourg are within international couples or mixed nationals and foreigners. Divorce in a relationship is an emotional time, difficult and full of bumps. If you are going through a divorce in Luxembourg, there are key steps, divorce laws and information to help guide you through the process.
Divorce law in Luxembourg: Mutual consent, grounds of fault or separation
Divorce law in Luxembourg divides the means of separation into three areas: mutual consent, grounds of fault (violence) and irretrievable breakdown of marriage. Marriages can only be dissolved in court and by court proceedings – as in no other form of mediation would be legally recognized. In any case, the court can dismiss a request if the divorce leads to an instable home environment for children, and in some cases also the spouse.
Divorce in Luxembourg by mutual consent can be considered after two years of marriage, and both spouses must be a minimum age of 23. Agreements need to be made that decides where each spouse will live during the divorce proceedings, and the two usual issues to clear are property assets and children arrangements. When dividing property is involved, there has to be a notary to legally create an inventory and estimate a value. Spouses can choose to remain living in Luxembourg or live out of the country -- but remember that two court meetings will require your presence in Luxembourg.
Spouses must have a plan projecting the future of their children's upbringing that both can agree to. What are the arrangements during and after the proceedings? Who will the children live with? (Joint custody is not allowed in Luxembourg.) How will each spouse make their efforts to match their children’s upbringing with equal responsibility? The spouse who does not hold custody should expect to make maintenance payments to the spouse who holds custody. Bottom line: these points must be agreed upon by both spouses, and written in a signed document.
'Grounds of fault'
In Luxembourg, the phrase 'grounds of fault' refers to physical violence or moral cruelty in the marriage. Proof will most likely be needed that shows serious violation or repetition of violence has happened to a point where marriage is insufferable. The spouse who loses this case goes through an 'avantages matrimoniaux' and all marital benefits stated in the original marriage contract are forfieted.
'Grounds of separation'
Divorce in Luxembourg by separation can go two ways. One way is showing that there has been a constant separation between the two spouses for at least three years, and that the 'break up' is permanent. The second way is to prove that a separation for at least five years has taken place due to incurable mental disorder from one or both spouses that have disrupted the marriage to a point of collapse.
For many who go through a divorce, the custody of children will be the biggest factor to consider. In Luxembourg, no joint custody is allowed. However, the other parent will still have visiting rights, accommodation rights and supervisory rights possibilities that will be determined during the proceedings. Remember to write as specifically as possible an outline of childcare, both during the divorce and in the future, as a signed agreement between the two spouses. Make a few copies, as it will be requested by the court, and possibly any attorneys involved.
The rights to keep one another's surname is circumstantial. For example, a divorced woman can still use former husbands name if he agrees to it, although he can withdraw at anytime and this rule does not apply with divorce on the grounds of fault. There may be time limits created to give the spouse room to adjust the change of surnames if something like the name of their business would result in financial strain. In the case of a 'grounds of fault' divorce, the spouse forfeits any connection to the marriage-adopted surname.
Is there Luxembourg property involved in your divorce? The first step is to take back all property that was owned by either or spouse, then see what’s left. Any joint property, assets and liabilities, are liquidated and value is estimated by an objective notary. Each spouse puts together a statement on what they believe is owed to them from this joint liquidated estate pool, and the court makes the finl decision.
Legal separation versus divorce
In Luxembourg, when a spouse goes to apply for a divorce, the option of a legal separation is always a possibility. A legal separation does not completely dissolve a marriage, but it does recognise that the relationship is pulled apart in a sense. Spouses no longer have to live together, for the same reasons why spouses would apply for divorce, though mutual support for one another and fidelity are still binding agreements. After three years of separation, both spouses can file for a divorce, and the divorce can be granted even if the request is one-sided.
It’s not very common, but sometimes spouses file for divorce when the marriage was never deemed valid. If the marriage contract was signed without consent of the spouses, signed while spouses were married to others (bigamy), or signed by spouses under the age of 18 without parental consent. Lastly the marriage can be annulled if the formal criteria was not met: publicly contracted and signed before witnesses, without a licensed marriage authorizer or following the traditional banns rules of relevant religious denominations.
How to file for divorce in Luxembourg
The first step is to submit the application for divorce, legal separation or marriage annulment to your District Court.
There are two judicial districts in Luxembourg, and if you are unsure you can check this directory to find your local commune:
- Luxembourg district court – cantons of Capellen, Esch-sur-Alzette, Grevenmacher, Luxembourg, Mersch and Remich.
- Diekirch district court – cantons of Clervaux, Diekirch, Echternach, Redange, Vianden and Wiltz.
If the divorce needs to be issued by a court outside Luxembourg, the European Union member states will automatically recognise the decision given from one court to another. This could be different for countries outside of the EU, and in that case it’s important to research what is expected from the other country’s legal courts.
The second step is to have legal representation, as it is mandatory to have a lawyer unless the divorce is by mutual consent. When the case is submitted, the judge will examine and look for detailed descriptions about the spouses and children (include birth certificates), specifics and proof that leads the divorce to grounds of fault or irretrievable breakdown of marriage. Be sure to include a copy of the marriage certificate. The summons can also include details on maintenance of property, child custody concerns and other similar issues.
Those with a mutual consent divorce must include the agreement created and sign that concludes decisions on property rights and child maintenance, contributions made to maintain children, where the spouses are living during and after the proceedings, and the documents that show a notary has done inventory and an estimate of their property. Give a signed copy of this division of assets, property, etc., to your property notary. When the documents are in order, including the application form, the notary documents, the marriage certificate and children’s birth certificates, both spouses submit their application together in person to the civil court district president. A lawyer or notary present is not needed. Six months later the spouses must appear again together in person at the court to restate their divorce. It is then when the court grants or refuses the divorce.
How to appeal a divorce
An appeal is possible within 40 days after the court decision (residents abroad can get extensions). All appeals are sent to the Supreme Court of justice.
If you are going through a divorce in Luxembourg, and want to know more about divorce law in Luxembourg, the American Embassy has a PDF list of attorneys in Luxembourg who speak English. Learn more about Luxembourg law on the country’s justice site here.
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