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The Belgian Law of Affiliation

Published online by Cambridge University Press:  28 February 2019

George E. Glos
George E. Glos*
Affiliation:
European Law Division, Library of Congress, Washington, D.C.
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Extract

Belgium has a new law on affiliation. It was enacted on March 31, 1987, and replaced the existing provisions in Book I, Title VII, of the Civil Code. The new provisions are contained in articles 312 including 341 of the Civil Code. The parent-child relationship has, however, further ramifications in other parts of the Civil Code dealing with certificates of the civil status, missing persons, marriage, divorce, parental authority, minority, guardianship and emancipation, successions, and gifts inter vivos and wills, which were also amended to reflect the new concepts. Further necessary modifications were made in the Judiciary Code, the Criminal Code, and in some other existing legislative texts. The new legislation also has extensive transitory provisions. In addition, the pertinent modifications affecting adoption were made in the Law of April 27, 1987, Modifying Several Legal Provisions Concerning Adoption, and a new law, the Law of May 20, 1987, Concerning the Abandonment of Minor Children, further improved the standing of children.

Type
Articles
Information
International Journal of Legal Information , Volume 16 , Issue 1 , Spring 1988 , pp. 1 - 15
Copyright
Copyright © 1988 by International Association of Law Libraries 

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References

1. Law of March 31, 1987, Modifying Certain Legal Provisions Concerning Affiliation, Moniteur Belge [official legal gazette of Belgium], May 27, 1987.Google Scholar

2. Moniteur Belge, May 27, 1987.Google Scholar

3. Id.Google Scholar

4. Civil Code, art. 757.Google Scholar

5. Id., art. 908.Google Scholar

6. Id., art. 764.Google Scholar

7. Id., arts. 335, 342.Google Scholar

8. Moniteur Belge, April 26, 1908; March 12, 1938; February 20, 1958; April 12, 1969; August 1, 1974, respectively.Google Scholar

9. The Convention was done in Rome on November 4, 1950, European Treaty Series (ETS) No. 5. The First Protocol thereto was done in Paris on March 20, 1952, EST No. 9.Google Scholar

10. Council of Europe, European Court of Human Rights, Marckx Case, Judgment, Strasbourg, 13 June 1979. The action was brought by an unmarried mother, acting on behalf of herself and her infant daughter and challenged the Belgian law of maternal affiliation as discriminatory. Under Belgian law, no legal bond between an unmarried mother and her child resulted from the mere fact of birth and maternal affiliation was established by a voluntary recognition by the mother or by legal proceedings taken for the purpose, known as “action en recherche de maternité”.Google Scholar

Having reviewed the Belgian law on the subject, the Court held that it constituted a breach of articles 8 and 14 of the Convention and of Protocol No. 1, attached thereto.Google Scholar

11. Article 8 of the Convention provides:Google Scholar

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.Google Scholar

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 provides:Google Scholar

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 reads as follows:Google Scholar

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.Google Scholar

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”Google Scholar

12. Doc. parl., Sénat, 1977-1978, No. 305(1).Google Scholar

13. Supra note 10.Google Scholar

14. The Belgian draft legislation considered the recently enacted Swiss legislation on the subject which consists of articles 252-327 of the Swiss Civil Code that were enacted in the present form by the Federal Law of June 25, 1976 on Affiliation and its Effects. It entered into power on January 1, 1978. Recueil officiel des lois et ordonnances de la Conféderation Suisse (Recueil des lois fédérales) 1977 I 237-260.Google Scholar

15. Supra note 1. For comments see: Edouard Vieujean, “Le nouveau droit de la filiation”, Annales de droit de Liège, 1987, No. 2, p. 97; Jacqueline Dalcq, “La réforme du droit de la filiation,” Journal des Tribunaux, 1987, No. 5426, p. 393.Google Scholar

16. Civil Code, arts. 312-314.Google Scholar

17. Moniteur Belge, December 22, 1984. The certificate of birth must give the family name and the given name of the mother and her place of residence.Google Scholar

18. The proof of affiliation is defined in article 331nonies of the Civil Code. Conclusive facts of affiliation are among others: the child has always carried the name of his mother; she has always treated him as her child; she provided for his maintenance and education as his mother; the child treated her as his mother; the child is recognized as her child by her family and the society; the public authorities consider him as such.Google Scholar

19. Civil Code, arts. 315-318.Google Scholar

20. Id., art. 317.Google Scholar

21. The cases are as follows: 1. If the child is born more than 300 days after a judge in divorce proceedings found that the parties declined to reconcile in accordance with article 1258 of the Judiciary Code, or after the spouses declared in divorce proceedings for a divorce by consent their desire to part in accordance with article 1289 of the same Code, and less than 180 days after the petition for divorce was dismissed, or after the reconciliation of the spouses. 2. If the child is born more than 300 days after the date of actual separation of the spouses in divorce proceedings on the ground of 5 year separation in accordance with article 232 of the Civil Code. 3. If the child is born more than 300 days after an order of the Justice of the Peace was made in accordance with article 223 of the Civil Code authorising the spouses to live separately, and less than 180 days after the order was lifted or after the spouses resumed their cohabitation as a matter of fact. 4. When maternal affiliation was estabished by recognition or by decision of court. 5. When the husband brought the action before maternal affiliation was established. In all the above enumerated instances proof of paternity may be made by all legal means.Google Scholar

22. Civil Code, arts. 319-321.Google Scholar

23. Id., art. 319(4).Google Scholar

24. Supra note 21.Google Scholar

25. Civil Code, arts 322-325.Google Scholar

26. Supra Section 2b. ii, Affiliation by recognition, and supra note 21.Google Scholar

27. Civil Code, arts. 326-330.Google Scholar

28. Id., art. 326.Google Scholar

29. Id., arts. 331-333.Google Scholar

30. Id., art. 328 (old law).Google Scholar

31. An action for annulment of recognition by the husband in accordance with provisions of article 319(4) of the Civil Code must be brought within 6 months from the notification; the descendants of a deceased child can bring action to establish their status only after their father and/or mother would be 25 years old (Civil Code, art 332ter (2)); an action to contest paternity may be brought by the mother within 1 year from the child's birth, that by the husband or previous husband within 1 year from the child's birth or from its discovery, and that by the child within 4 years from the day on which he attained 18 years of age (Civil Code, art. 332 (4) (5)).Google Scholar

32. Supra note 18.Google Scholar

33. Supra note 31.Google Scholar

34. Civil Code, arts. 332ter and quater.Google Scholar

35. Id., arts. 334-335.Google Scholar

36. Id., art. 915bis (2).Google Scholar

37. Id., arts. 336-341.Google Scholar

38. Id., art. 337.Google Scholar

39. Id., art. 324; supra Section 2b. iii, Paternal affiliation, Affiliation by a suit to determine paternity.Google Scholar

40. Supra note 1, arts. 1-14.Google Scholar

41. Id., arts. 19-35.Google Scholar

42. Supra Section 2b. i, Presumption of paternity.Google Scholar

43. Supra note 1, arts. 39-49.Google Scholar

44. Id., arts. 50-65.Google Scholar

45. Id., arts. 66-77.Google Scholar

46. Id., arts. 107-120.Google Scholar

47. Supra Section 2c, Provisions common to affiliation.Google Scholar

48. The limitations are spelled out in articles 331ter, 332 (4), 332ter (2), 337 (1) of the Civil Code; supra Section 2d., Suits concerning affiliation, and note 31, and Section 2f., Suits for support and education, and note 38.Google Scholar

49. Supra Section 2f., Suits for support and education.Google Scholar

50. Civil Code, arts. 312, 321, 325.Google Scholar