Belgium Civil Law and Procedure
Civil law. – According to usprivateschoolsfinder, Belgium has kept the Napoleon Code, which has undergone less radical changes than in France itself. However, if the work of the Belgian legislator can be reproached for its lack of daring, it must be recognized that it has generally proved to be very solid.
As regards nationality, the laws of May 15, 1922 and October 15, 1932 remain faithful to the principle of ius sanguinis, except for the children of unknown persons and save the faculty for anyone born in Belgium to opt for Belgian citizenship.
In the field of family law, the provisions in favor of marriage should be noted, such as the laws: April 30, 1896 (which attenuates the provisions of the code relating to parental consent); February 11, 1920 (which eliminates the impediment to marriage between brothers-in-law and sister-in-law, provided that there is no previous marriage rupture due to divorce); February 8, 1906 (authorizing second marriages between divorced spouses). Despite modern claims, the principle of the incapacity of the married woman has been maintained; however she regains the exercise of full legal capacity in the event of personal separation (law of 20 March 1927) and has her own emoluments for the needs of the family (law of 7 August 1922).
But the most characteristic element of the law in force consists in the fact that the husband has the faculty of making his wife capable, by means of authentic authorization (law of 20 July 1932).
In matters of parentage, the search for paternity is only permitted in exceptional cases, but proof of a relationship with the mother at the time of conception can serve as a basis for an action for alimony (law 6 April 1908). Parental authority has been deprived of the right of correction, as per articles 375 et seq. of the code; the law of 15 May 1912 attributes this disciplinary power to the “juvenile judge”; the court of 1st instance can pronounce the forfeiture of parental authority for grave reasons.
The law of 10 August 1909 recognized the right of the mother to exercise protection.
Regarding legal persons, after a long period of disfavour by the jurisprudence, the law of 27 June 1921 adopted a very liberal system, which under certain conditions and provided certain forms of advertising are observed, recognizes the legal personality of associations without end of profit and of institutes or foundations with public utility purposes.
In matters of property and rights in rem, the main modification to the rules of the code is found in the law of 16 December 1851, which organizes the publicity of inter vivos transfers of real estate rights as well as the regime of privileges and mortgages. The mortgage, even legal, is always special, that is, imposed on specific assets, and public. On the other hand, by way of derogation from the customary principle, that in the matter of furniture, possession is valid, the law of 24 July 1921 ensures, through the publication, the effectiveness of the claim of bearer securities to the owner who has been involuntarily dispossessed of them. Extensive legislation ensures, in addition to the provisions of the code, the protection of so-called intellectual rights (literary and artistic property, etc.).
In succession intestate, they deserve to be reported two important reforms. The surviving spouse, neither divorced nor separated, who, according to the code, in the presence of relatives admitted to the succession was excluded from all rights, has the right to a share which, normally, is half. (law November 20, 1896); with the law of 11 October 1919 the right to inheritance in collateral line was limited to relatives in the fourth degree (instead of in the twelfth).
The general principles of the code on obligations have been almost completely respected; however, the system of liability based on fault has undergone severe restrictions in favor of the system of strict liability enshrined in certain laws of social interest, such as the laws relating to compensation for accidents at work (laws 24 December 1903 and 30 December 1929), and for damage caused by occupational diseases (law of 24 July 1927).
As for contracts, the provisions of the code have remained unchanged as regards marriage, in which, in the absence of special conventions, the common law regime is that of legal communion of goods. While for a long time the legislator has tried to free the freedom of the contracting parties from certain restrictions, proclaiming, for example, free the fixing of the conventional interest rate (law 5 May 1865), now there is a tendency rather – in general – to restrict the autonomy of the parties, as evidenced by the recent legislation on the leases of rustic estates (law 7 March 1929) which imposes a minimum duration of nine years for leases and a two-year notice for termination. Other examples of legislative interventions in contractual matters are the laws of 11 June 1877, 25 March 1891 and 10 March 1900.
Civil procedure. – The French code of April 14, 1806, still in force, has recently undergone important changes.
In addition to the modifications resulting from the laws on judicial organization and jurisdiction, and the abolition of personal arrest in civil matters (law of 27 July 1871), we will only recall the laws of 12 August 1911, which abolishes the preliminary conciliation and 15 August 1854., which changes the set of provisions relating to forced expropriations; finally, and above all, the royal decree of March 30, 1936 which, thanks mainly to the development of the summary procedure, made significant remedies to the cumbersome formalism of the old code.