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allowed by consent of the parties. Whenever a decree of
judicial separation has been made upon any other ground
except that of adultery of the wife, and has lasted for
three years, the party who was originally respondent in
such proceedings is at liberty to claim a divorce, and the
court may allow the same if the original petitioner, being
present or duly summoned, does not immediately consent
to resume cohabitation, and a decree of judicial separation
always carries with it separation of goods.

Title 9, Part II., Book I. of the Code of Civil Procedure
(Articles 875— 881) then goes on to provide that the married
person who desires to obtain an order of judicial separation
must present to the President of the Court of the district in
which he resides, a written application summarily setting
forth the grounds, and must annex thereto the documents
in support thereof. This application must be dealt with
by an order directing the parties to appear before the
President on a date to be stated in such order. The
parties are then bound to appear personally without being
assisted either by solicitor or counsel. The President
makes to the parties such observations as he may consider
necessary for the purpose of bringing about a reconciliation,.

F 2



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68 Code of Procedure (Commentary).

and should he fail he shall make, following the first order,
a second order setting forth that as he has not been able
to reconcile the parties, they are to be at liberty to proceed
without reference to the Conciliation Bureau, and ne shall
by the same order allow the wife to proceed with her
application, and authorise her to retire provisionally from
the conjugal abode and reside in such house as may be
agreed upon between the parties, or as he appoints.
He shall order likewise that the goods necessary for the
wife's daily use be handed over to her. The matter then
proceeds in the form established for other kinds of claims,
and is adjudicated upon after the conclusions of the public
authority dealing with the matter in regard thereto have
been heard. An extract of the judgment pronouncing
the judicial separation must be posted upon the notice
board as well in the audience chamber of tne court of the
district, as in the principal room of the chambers of
solicitors and notaries, as provided in Article 872. So far
as regards the divorce, it must be proceeded with as pro-
vided in Articles 229 — 234 of the Civil Code set out
above.

Chapter IV. of the same book of the Civil Code, com-
mencing at Article 295 and concluding with Article 305,
deals with the legal results of a decree of divorce, and it is
first provided that after a decree absolute, upon whatever
ground the same may have been made, the parties cannot be
re-united, and where a divorce has been decreed for *' good
cause " (see Articles 229 — 232, ante\ the divorced woman
is not to be at liberty to re-marry until six months after
the decree. In the event of a divorce by mutual consent
neither of the parties is at liberty to contract a fresh
marriage until after three years from the date of the
decree of divorce. In the event of the divorce being
judicially decreed by reason of adultery, the guilty party
is not allowed to marry with the person with whom he
or she committed adultery. Upon whatever ground
the divorce is decreed other than " mutual consent," the
guilty party loses all the advantages which he or she took
under tne marriage contract, and of anything that may have
accrued to him or her since the marriage. The innocent
party to the divorce, on the other hand, retains all the rights
and advantages to which he or she became entitled under
and by reason of the marriage. Should neither of the
parties have obtained any benefit by the marriage, or should



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Different Kinds of Proceedings. 69

these appear to be insufficient in order to maintain the
party obtaining the divorce, the court may order the other
party to provide out of his or her means alimony not
exceeding one-third of the income of such other party,
but this alimony ceases to be pavable when it is no
longer necessary. The custody of the children belongs to
the innocent party, unless the court, upon the application
of the family or of the State Attorney on the ground of
considering it for the benefit of the children, orders that
some of tne children are to be allowed to be in the
custody of the other party or of some third person. To
whomever the custody of the children majr be confided,
the father and mother are respectively entitled to super-
vise their bringing up and education, and are bound
to contribute thereto so far as they are able. Dissolution
of a marriage by judicial decree does not deprive the
children bom of that marriage of any of the advantages
which result to them by law or by the marriage settlement
between their father and mother, but the rights of the
children are no greater than they would have been but
for the divorce, if the divorce is by mutual consent, the
right of property in half of the goods of each of the
marrftd parties passes as of right as from the date of their
first declaration to children born of the marriage, the
father and the mother retaining, nevertheless, the enjoy-
ment of such half until the coming of age of their children,
subject to liability to provide for their maintenance and
education in accordance with their means and station in
life, the whole of which is without prejudice to the other
benefits which may have been assured in favour of the
children by the marriage settlement of their parents.

The next title of the Code of Procedure to be dealt with
is Title 10, which has relation to the rights of relatives,
forming a family council, to give their advice and assis-
tance in regard to matters affecting the interests of minors,
and Articles 882 — 889 provide as follows :

When a guardian has been nominated in his absence,
notice of the nomination is to be given to him within
three days of the date of the meeting at which he was
nominated. In all cases in which the deliberations of the
family council are not unanimous, the views of each of
the dissentient members must be set out separately in the
minute of proceedings relating to the same. The guardian,
deputy guardian, or curator, and even the members of the



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70 Code op Procedure (Commentary).

family council, are at liberty to appeal against the
decision arrived at, and any proceedings may be taken
against the assenting members without the necessity of
first going through the form of endeavouring to arrive at
a conciliation between them. The matter is to be dealt
with summarily, and in all cases in which the result of the
deliberation has to be ratified by the court a certified copy
of the same must be presented to the President, who at
the foot thereof makes an order, which is to be forwarded
to the public department dealing with the matter, and it
is his duty to appoint a judge to report upon the matter
on a day to be stated. The State Attorney must set forth
his conclusions at the foot of the order, and if the guardian
or other person whose duty it is to obtain ratification does
not do what is necessary within the time appointed, or
failing an appointed time within fifteen days, any one of
the members of the family council is at liberty to proceed
to get the same ratified. Those members of the family
council who consider it their duty to oppose the ratifica-
tion, must notify the same by an extra-judicial act to the
person whose duty it is to obtain the ratification, and
should they not have been served with the necessary
notice, they are at liberty to appear in opposition Hb the
judgment of ratification which is sought. All judgments
given in matters relating to decisions of family councils
are subject to appeal.

The next two titles deal with prohibitions and the benefit
of cessto honorum^ but as the former is of very limited
application, and the latter is practically superseded by the
law with regard to insolvency referred to later on in this
book in the comments on the Commercial Code, it is not
thought necessary to do otherwise than refer the reader to
Articles 890 — 906 of the Code of Procedure on the two
subjects.



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( 71 )



CHAPTEK VIII.

INHERITANCE AND SUCCESSIONS.

Book II. of this Code, dealing with successions to
property of a deceased person, is of great importance, bnt
as in the cases of marriage contracts and divorce referred
to above, it is necessary to give the reader some idea of
the provisions of the Civil Code in regard to the matter
before dealing with this book, and his attention is parti-
cularly called to the provisions of Book III., Title 1,
Articles 718 — 892 of tne Civil Code on the subject, the
most material provisions of which are as follows :

The law provides for the order of succession as between
legitimate personal representatives, and in default of these
the deceased's goods pass to his natural children, after
which they pass to any surviving husband or wife, and,
should there be none of either, then they pass to the State.
All the next-of-kin (always referred to as " heirs " in the
Code) upon the death become entitled as of right to all
goods, rights, and choses in action of the deceased, subject
to the liability of paying all valid claims against the estate.
Natural children and the surviving husband or wife, and
also the State, must get themselves put into possession of
the property by judicial order in the manner provided by
law. In order to be entitled to share in the succession the
person entitled must be in existence ; children conceived
and born after the death and children not born alive, take
no interest in the succession. By a statute dated 27th
April, 1865, it is provided that foreigners are to be entitled
to share in successions, and to dispose of and receive their
share of the same in the same manner as native born
Belgians. In cases of division of property in a succession
between parties entitled, some of whom are foreigners and
others Belgians, the rights of foreigners are the same with
regard to the portion of the estate in Belgium as their
rights are over that portion of the estate which may be
situate abroad.

The following persons are incapable of sharing in a
succession, viz. :

(1) Any person who has been found guilty of compass-
ing or causing the death of the deceased.



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72 Code of Procedure (Commentary).

(2) Anyone who has brought an untrue capital charge
against the deceased.

(3) Any claimant of full age who, having known of
a plot to murder the deceased, has not informed the
judicial authorities thereof. But the children of the last-
named are not by reason of their parents' fault excluded
from the succession.

The order of succession as between children, grand-
children, ancestors, and collateral relatives of the deceased
is regulated as follows : The law does not pay any regard
to the method in which the property may have been
acquired in settling the order of succession. As between
ancestors and collaterals the property is to be divided into
two equal parts, one to go to the relatives in the paternal
line and the other to the relatives in the maternal line.
Relatives of the half blood are not excluded by those of
the whole blood, but they take their portion according to
their degree of relationship, subject to the provision of
Article 752. Those of full blood take their portion both
in the paternal and maternal lines. There is no represen-
tation from the half to the whole blood except in cases in
which there are no other claimants.

Sections 2 — 5, Articles 739 — 755, deal respectively with
the right of representation, which is described as a legal
fiction giving the representatives a right to enter into pos-
session according to their respective degrees of relationship.

Section 3, Article 745, deals with the rights of
descendants so far as regards the property of their
ancestors, and declares that neither sex nor age shall
give any prior right, but that each of the persons within
the decree is entitled to an equal portion per cavita
when they all belong to the first degree, but if they
become entitled only by representation, then they take per
stirpes^ and not per capita.

Section 4, Articles 746 — 749, deals with the case in
which the deceased leaves no descendants, brother, sister,
nephew, or niece, and provides that the property shall be
divided into equal halves between the ancestors in the
paternal and maternal lines, the ancestors in the nearest
degree taking one-half to the exclusion of all other
claimants, ana provision is also made for ancestors to take
their shares per capita.

Section 5, Articles 750 — 755, deals with the rights of
collaterals, and provides that in the event of the deceased
having left neither parent nor child the brothers and



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Inheritance and Successions. 73

sisters become entitled to the property to the exclusion of
all ancestors and other collaterals. In the event of any
one of these having died leaving children, such children
take their parents' share between them per stirpes. If,
however, a husband and wife should both die without
leaving issue them surviving, then the brothers and
sisters take no interest in the deceased's estate, but the
mother and father divide same between them in equal
shares, and should only one parent be left, then such
parent becomes entitled to three-quarters of the estate.
Whatever portion of the estate the brothers and sisters
take between them they take in equal shares.

Chapter IV. of this book of the Civil Code deals with the
case of irregular successions, and provides in Articles 756
— 766 for the interests of natural children as opposed to
those born in wedlock. They are declared not to be legal
next-of-kin, and it is stated that the law gives them no
rights in regard to the property of their deceased father
and mother unless they have been legally recognised.
Their rights are regulated as follows :

If the father or mother has also left legitimate oflFspring,
their right is to take one-third of the portion which they
would have been entitled to had they been legitimate, and
they are entitled to one-half of this portion in cases
where neither the father nor the mother leaves legitimate
issue them surviving, but does leave ancestors and brothers
and sisters, and they are entitled to three-quarters when
the father and mother leave neither legitimate issue,
ancestors, brothers, nor sisters. A natural child who is
the only offspring is entitled to the whole of the goods
when neither the father nor the mother leaves any relations
within any degree capable of inheriting, but the rights of
natural children do not extend to those who are born as
the result of adultery or incest ; in regard to these all the
law does in their favour is to entitle them to maintenance,
and what this maintenance is to be depends on the fortune
of the father or mother and the particular kind of legiti-
mate successors who take the estate. Where the father or
mother has given the adulterous or incestuous child a trade
or calling enabling him or her to make a living, such
child is entitled to make no claim whatever upon the
succession. In the event of the death of a natural child
without leaving issue, the father or mother who has
legally recognised such child is entitled to succeed to his
or her property. If the two are living, the same is to be



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74 Code of Procedure (Commentary).

equally divided between them, provided the child has been
legally recognised by both. Snoald the parents of such
natural child both te dead, all goods which he or she
has acquired pass to the legitimate brothers and sisters, if
there are any, in the same form as they were in at the time
when they were acquired. The Law of 20th November,
1896, provides for tne riahts of the surviving husband or
wife, and abrogates Article 767, making the following
rules applicable in lieu thereof :

(1) When the deceased leaves neither relatives entitled
to succeed nor natural children, the property is to
belong to the surviving wife or husband, as the case may
be, who has been neither divorced nor judiciallv separated.

(2) The surviving husband or wife who lias neither
been divorced nor judicially separated, and who does not
succeed to the whole of the property of the deceased, is
entitled to a like interest in the proceeds thereof, upon terms
and conditions which are set out in a number of sub-para-
graphs which it is not necessary to set out here in detail.

Article 768 provides that in default of husband or wife
surviving, and also in default of there being any other
legal nextrof-kin, the succession goes to the State. The
surviving husband or wife or the Ministry of State Lands
claiming to be entitled to the succession, is bound to cause
the seals to be put upon the property, and to direct
an inventory in the form prescribed by law to be made in
the cases where successions are claimaole by virtue of the
law as to benefit of inventory. They must make applica-
tion to the Court of First Instance of the district in which
the deceased's property is situate, and in which the succes-
sion is opened, to put them into possession, and the court
is not at liberty to deal with the application until the same
has been advertised three times, and posters have been
displayed according to the usual method, and after the
State Attorney has been heard in regard to the matter.
The surviving husband or wife is given power to use the
household furniture during a period of three years on
condition of giving sufficient security for its being handed
over should other personal legal next-of-kin of the deceased
prove their claims within such three years, but after the
end of that time the security given may be discharged. The
surviving husband or wife, or the Ministry of Public Lands,
if they have not complied with the regulations referred to,
may respectively be mulcted in damages at the suit of the
legal next-of-kin, should they come forward subsequently.



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Inheritance and Successions. 75

Chapter V. treats of the important question of accept-
ance or repudiation of successions, and the first Article
dealing with the matter, No. 774, provides that a succes-
sion may be accepted absolutely or subject to the benefit
of inventory. The meaning of this latter provision is the
same us that which was to be found in the Roman law
introduced by Justinian under the title of " Benejicium
inventarii^^^ and the result of it is that if the person
asserting his title in this way makes an inventory of
the estate on entering he is only liable to those havine
claims on the estate so far as the estate will go ; should
he, on the other hand, accept the succession without this
condition, he puts himself into the position of the deceased,
and becomes liable personally for the whole of the
deceased's debts, so that in practice, unless the person
claiming to be entitled has a very intimate knowledge of
the deceased's affairs, no interest in an estate is accepted
except subject to this condition. No person is bound to
accept a succession to which he may be entitled by law.
Married women are not at liberty to accept the same
without the authority of their husbands, or an order of
the court according to the method set forth in Chapter VI.,
under the Title of " Marriage." Minors and persons under
disability cannot validly accept a succession except in
accordance with the provisions of Articles 217, 219, and
461 of the Civil Code, under the Title of "Minority,
Guardianship, and Emancipation." The result of accept-
ance of the succession is to carry the acceptor's title and
liability back to the day of the opening of the succession.
The acceptance may be either express or tacit ; it is
express when the person exercising it assumes the position
of a legal next-of-kin in a deed either duly authenticated
or under his hand ; it is tacit when the same person does
an act which presupposes of necessity his intention to
accept the succession, and which act he could not by
right do except as a legal next-of-kin. Actions which
are purely preservative or supervisory, and which are
only provisional, are not to be construed in such a way as
to charge the person doing them with making himself
liable to accept the succession unless he has assumed the
title of legal next-of-kin. Disclaimer of the succession is
not to be presumed, and the same can only be made at
the Registry of the Court of First Instance within the
Department in which the succession is opened, and
must be recorded in the register kept for such special



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76 Code of Procedure (Commentary).

purpose. The person disclaiming is to be regarded as
never having been entitled, and the share of such person
disclaiming passes as of right to those who were
entitled with him. Should the person disclaiming have
creditors, these creditors, if the disclaimer has been made
to their prejudice, may apply to the court for leave to
accept their debtor's share in the succession in his place,
and in this case the disclaimer is not to be annulled
except in favour of such creditors, and then to the extent
only of their debts, but no benefit be taken therein
by the disclaiming personal representative himself.
The period of time within which a succession must be
accepted or disclaimed is the longest time provided by law
for asserting claims to immovables. So long as this period
of limitation has not expired, so far as regards claimants
who have not disclaimed, they still have the right of
accepting the succession unless such right has already
been exercised by other claimants, without prejudice,
however, to rights which may have arisen in favour of
third parties with regard to property belonging to the
deceased's estate, whether by prescription or by acts or
deeds validly done with or by tne curator of a vacant suc-
cession. A contract of marriage cannot validly provide
for a disclaimer of the right of succession to the estate of
a living man, nor dispose of rights which the person
entering into the contract may eventually become entitled
to in such succession. Claimants who may either have
made away with or destroyed property belonging to the
deceased's estate forfeit the right of disclaiming ; they
ipso facto become claimants pure and simple in spite of
their disclaimer, without, however, getting any benefit
from that portion of the estate which they have either
made away with or destroyed.

The next section (3) deals with the subject of benefit
of inventory above referred to, and of its effects upon the
liabilities of the claimant who exercises his option of
claiming the estate under these terms and conditions.
This person must evidence his intention to accept in this
manner by entering at the Registry of the Court of First
Instance of the district in which the succession is opened
a note upon the register kept thereat for the purpose.
This note will not have any effect unless it is either pre-
ceded or followed by the preparation of an exact inventory
showing the property of which the deceased's estate con-
sists, prepared in the form and manner provided by law



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Inheritance and Successions. 77

and within the times hereinafter set forth. The claimant
has three months within which to make his inventory,
dating from the date of the opening of the succession ;
beyond this he has a farther forty days within which to
make np his mind whether he will accept or disclaim, and
these forty days commence to run from the last day of the
three months above alluded to, or from such earlier date
as the inventory was completed on. If, however, the
estate consists in part of perishable articles, the claimant
may, having regard to his being a prospective next-of-kin,
and without, by reason thereof, becoming liable as such,
obtain a judicial order authorising him to sell such portion
of the estate. This sale must be made by a public officer
after due advertisement thereof. During the time allowed
for making the inventory and for deciding as to whether
or not the position of a legal next-of-kin will be accepted
the claimant cannot be forced to assume this position, and
no rights of action against him in that capacity can be
enforced. Should he disclaim after the time allowed has
expired, or even earlier, all expenses legitimately incurred
by him up to that time are payable out of the estate.



Online LibraryTodd BelgiumA treatise on Belgian law: containing a complete translation of the entire ... → online text (page 8 of 64)