Q: How is child support calculated in Belgium?
In our last column, we examined the question of child custody for divorced (or separated) parents in Belgium. The other key question is, of course, how the cost of raising children will be shared between the parents.
To answer this, we must first know two things: Which court will have jurisdiction, and whose law will be applied. In Belgium today, both of these decisions are made according the rules set out in European regulation No. 4/2009.
The main principle of this regulation is that the habitual residence of the children determines both the court and the applicable law. This means that if the children are habitually resident in Belgium, Belgian courts will have jurisdiction on child support and they will apply Belgian law.
As always, there are exceptions to the rule. They are foreseen in Article 3 of the EU regulation:
"In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:
(a) the court for the place where the defendant is habitually resident,
(b) the court for the place where the creditor is habitually resident,
(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties."
In short, this means that, in addition to the habitual residence of the child, the other main criterion is the habitual residence of the defendant, i.e. the person of whom child support is asked.
It can also be linked to the court that has jurisdiction on parental responsibility, which most often is the one of the habitual residence of the child (see previous column).
For what the applicable law concerns, the EU regulation refers to The Hague convention protocol of 23 December 2007. The rule in this regulation is the same general rule as in for the jurisdiction, being the habitual residence of the creditor (i.e. the child).
That being said, it means that if your children are habitually resident in Belgium at the moment the court is seized, Belgian court will have jurisdiction, and they will apply Belgian law.
Now, what does it mean exactly? How will the child support be calculated?
The rules that govern calculation for child support in Belgian law are to be found in article 203 of the Civil Code. This article of law was amended in 2010 in order to calculate child support in a more objective manner.
Article 203 foresees that both parents are to take care of the hosting, maintenance and education of the children, each in accordance with their own financial abilities. What is important to know is that the law now explains with more clarity what is to be understood by "abilities".
It is "all income being professional, movable and immovable of both the mother and the father, but also all advantages and other means that enable the standard of life of the parents and of the children".
This means that the judge, in order to compare the incomes of the parents, will not only take into consideration their official income, but also all advantages they may have as capital gains, bills being paid by their employer, any advantages given by the fact that they work through a privately owned company (which is often the case in Belgium for self-employed persons), etc.
Once the judge has established this ratio, the parents will have to submit a budget of the cost of the children, including every daily cost. Each cost should be established and evidenced. This budget will then be the basis of the judge’s calculation. The judge will also consider the custody arrangement, i.e. the number of days the child spends with each parent.
With this information, the judge will order the amount to be paid on a monthly basis by one parent to the other one.
When the income of both parents are not sufficient to maintain the child's lifestyle after divorce or separation (as it is often the case, a separation almost always means a reduction of the whole family's life style), the calculation will take into account this reduction of the life style, and the children will have to face it also.
In addition to the monthly child support that will be calculated, all exceptional costs will have to be shared through the same ratio as the one used for the day-to-day costs.
Art. 203bis of the Civil code defines what has to be seen as "exceptional costs" i.e. " all exceptional expenses, needed or unpredictable that are the consequence of accidental or unusual circumstances and that exceeds the usual budget taken into account for the calculation of the daily cost of the child".
These exceptional costs should therefore be reimbursed (in proportion) by the other parent to the one who has made the expense.
In short, it is a complex matter that depends not only on the income of each parent, but also their potential income, and, of course, the cost of the children.
Finally, it is important to know that the amount of the child support can be modified as soon as there is a (unintentional) change in the financial situation of any of the members of the family (one parent earns more, or less, a child costs more - because of university, aging - or less: the alimony served to one parent has come to an end, etc.).
In conclusion, even with the new legislation, there is much room for the interpretation of the judge, as each court has its own interpretation of what is the normal cost of a child.
The simplification of the calculation is not reached yet and the predictability of the amount of a child support remains, unfortunately, very weak.
Arnaud Gillard is an attorney at Dal & Veldekens and is a member of the Brussels bar.
The contents of this column are not intended to serve as legal advice related to any individual situation. This material is made available for informational purposes only.
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