4. Protection for domestic violence victims and relief granted | Belgium | Fighting Domestic Violence

4.1 Civil protection orders

4.1.1 Are there civil protection orders available to victims of domestic abuse?

Yes. Based on civil law, the victim can ask for a protection order. Violation of the order is not criminalized but carries a civil penalty. Article 223 of the Civil Code mentions that if one of the spouses seriously fails in their duties, the family court orders, at the spouse's request, urgent measures in accordance with Articles 1253-ter/4 to 1253-ter/6 of the Judicial Code. This includes measures related to:

the prohibition of contact between parties^[15]
the prohibition on one or the other of the parties to enter the conjugal residence^[16]

Article 1479 of the Civil Code^[17] mentions that the family court can take urgent preliminary injunctions related to the occupancy of the family home in case the harmony between the legal cohabitants is seriously hindered.

Last, as mentioned, the Act of 15 May 2012^[18] regulates short-term barring orders in cases of domestic violence. This law came into force on 1 January 2013.

4.1.2 Who can petition for civil protection orders?

The spouse/partner can request protection orders related to Article 223 of the Civil Code. The legal cohabitant can request protection orders related to Article 1279 of the Civil Code. It requires that the victim sue the other person to obtain application of this civil protection order.

Only the prosecutor is authorized to impose a temporary residence ban/short-term barring order (Article 3 § 1 Act of 15 May 2012). The family court can lift, prolong or change the barring order after it is requested, in writing or orally, by the parties or the public prosecutor (Article 5 § 2 Act of 15 May 2012).

4.1.3 Are there temporary custody of a child or child support orders?

In application of Article 223 of the Civil Code, in cases of child abuse, the judge can allocate the use of the family home to the non abusing parent.^[19] In civil law, urgent preliminary injunctions apply to all the children residing in the family home.^[20] During divorce procedures, the preliminary injunctions only apply to the mutual children of the divorcing partners, according to Article 1254 of the Judicial Code.^[21]

The Act of 15 May 2012 can apply in cases of violence from a parent to one or more children. The public prosecutor must then decide the name of the persons with whom the barred person is prohibited from having contact.

4.1.4 Is there a provision to order the abuser to move out or stay away from places that the victims frequent?

Yes. Different options exist:

Under the Act of 28 January 2003, the spouse or legal cohabitant victim of physical violence perpetrated by their spouse or legal partner may be granted, save in exceptional circumstances, the use of the conjugal residence, upon his/her request.
Pursuant to the Act of 15 May 2012, a person who is committing acts of domestic violence (or who is an immediate threat for the coresidents) can be temporarily barred from the family home and the immediate residential environment, and be prohibited from contacting the coresiding person(s). The person barred from the house is prohibited from entering, being located near or being present in the place of residence.
Following Article 223 of the Civil Code and Articles 1253-ter/5 and 1253-ter/6 of the Judicial Code, it is possible to prohibit one of the parties from entering the family home. In case of serious indications of rape or violence, the family home will be assigned to the spouse who is the victim of the abuse. In case of child abuse, the judge can allocate the use of the family home to the nonabusing parent.^[22]

4.1.5 Are there any other types of emergency, preventive and civil protection orders?

In the event of an imminent and serious danger, the Public Prosecutor's Office may also refer the matter to the investigating judge to issue an arrest warrant leading to preventive detention.

In cases where the danger is not serious and imminent, the Public Prosecutor's Office may instead ask the police to find an arrangement with the parties on a voluntary basis.

Note that protective orders can be implemented during several stages of the criminal procedure, e.g., conditional release in case of pre-trial detention, probation, mediation and amicable settlements.

4.1.6 Can these orders be requested by direct or indirect victims or legal representatives in children's cases?

The protective measures described above also apply where the children are under threat and can be requested by one of the parents/legal representatives.

4.1.7 Are there different types of civil protection orders, e.g., for a short- term period?

Yes, see above for the different types of protection orders.

4.1.8 Are ex parte orders permitted without the aggressor being present?

In principle, no. Circular 18/2012 of the College of Attorneys General to the appeal courts, regarding the temporary ban on residence in case of domestic violence,^[23] paragraph F, mentions that the decision for a barring order is, in principle, only taken after the hearing of the person "to be barred." However, in cases where the person refuses to be heard, police officers will inform him/her that the prosecutor will be informed of the situation and may nonetheless order a barring order. The police will have to document the refusal.

4.1.9 Do emergency orders also extend protection for abuse and intimidation to family members of the victim?

Apart from violence between partners, a situation of danger for other family members (for example, violence from a parent to one or more children) can also lead to a barring order, such as:

In the case of a barring order, the public prosecutor has the authorization to decide which persons the barred person is prohibited from having contact with, as long as they cohabit in the same place of residence. In cases of short-term barring orders, resident children are put in safety.
In cases of preliminary injunctions through a civil procedure, the judge will also decide on the residence of the children.

Urgent preliminary injunctions during marriage or legal cohabitation apply to all children residing in the family.

4.1.10 How long do the orders last?

According to Article 3 § 3 of the Act of 15 May 2012, a short-term barring order lasts for a maximum of 14 days (it was originally 10 days), starting from the notification to the person concerned. It can be extended by the family court for a period up to a maximum of three months (Article 5 § 2).

Following Article 223 of the Civil Code and Articles 1253-ter/5 and 1253-ter/6 of the Judicial Code, it is possible to prohibit one of the parties from entering the family home. In addition, Article 1479 of the Civil Code^[24] mentions that the family court can take urgent preliminary injunctions related to the occupancy of the family home in cases where the harmony between the legal cohabitants is seriously hindered. The duration of this measure is determined by the court.

4.1.11 Please provide any data or hyperlinks to government or NGO websites that include information on how often civil protection orders are issued, and any relevant demographics information, e.g., police reports, convictions, etc.

In November 2019, a written parliamentary question was raised at the Belgian Senate in relation to the use of the temporary residence ban/short-term barring order in relation to domestic violence.^[25] According to the response provided by the Ministry of Justice on 21 April 2020, it appears that short-term barring orders have been implemented 686 times between 1 January 2013 (i.e., time of entry into force of the Act of 15 May 2012 and 31 August 2019). Their use has been growing over the years: from 31 in 2013 to 161 in 2018. During the same period, 88 cases of violation of the temporary residence ban have been recorded.

It is also worth noting the following (unofficial translation of the response):

Between January 1, 2013 and August 31, 2019, 686 cases of temporary residence ban were recorded as a noncriminal case. Some jurisdictions have not heard of temporary residence ban cases because they have favored other types of measures. Thus, among all prosecutor's offices, only four of them resort to the temporary ban on residence. For other prosecutor's offices, the use of this measure is very limited. It is also possible, as the Antwerp public prosecutor's office points out, that the possibility of imposing a temporary ban on residence in cases where no criminal offense is found, has been overlooked by the police. The assumption can then be made that, in many cases, the temporary residence ban was no longer appropriate when the prosecution became aware of the situation, as the latter had not been notified immediately. Furthermore, in cases where criminal offenses were observed, the prosecution services resorted more to other types of measures deemed to be more effective (for example preventive detention). Raising awareness among stakeholders of the possibilities offered by the temporary residence ban, even in the absence of an offense, is gradually being made and the use of this measure may become more frequent in the future.

The following statistics may be found in the Belgian press:

In 2018 there were 21,604 reports of physical domestic violence made to police, up from 20,759 reports in 2017.^[26]
It was also reported that 70% of the complaints are being dismissed, with no further action being taken.^[27]

4.2 Steps for receiving a protective order

4.2.1 What documentation is needed to obtain a civil protection order?

To request a preliminary injunction on the basis of Articles 223 or 1479 of the Civil Code, the victim of domestic violence has to sue their spouse/partner. The formal requirements provided for in the Judicial Code in this regard will have to be met. The request for a preliminary injunction will more precisely need to mention:

the date of filing of the request
the name, surname and address of the person who requests the preliminary injunction
the preliminary injunction requested and the grounds for such request
the competent judge
the signature of the lawyer of the person who requests the preliminary injunction

No complaint has to be lodged by the victim of the domestic violence to obtain a temporary residence ban/short-term barring order nor does the victim have to summon their spouse/partner, hence no specific documentation has to be provided by the victim. A public prosecutor imposes a temporary residence ban/short-term barring order if they deem that all conditions are met, i.e., if it emerges from facts or circumstances that the presence of a person of full age at the residence represents a serious and immediate threat to the safety of one or more persons occupying the same residence. On the basis of Article 3 §4 of the Act of 15 May 2012, a copy of the short-term barring order needs to be notified to the barred person mentioning: (i) the scope and the duration of the measure; (ii) the facts and circumstances that gave rise to the short-term barring order; (iii) the name(s) of the person(s) he/she is prohibited from contacting; and (iv) the sanctions that can be taken in the case of a violation of the order.

4.2.2 Does the victim need to attend a hearing?

Yes, if the family court has requested the hearing and if the preliminary injunction (requested on the basis of Articles 223 or 1479 of the Civil Code) concerns minor children, the victim will have to attend the hearing in person (as per Article 1253-ter/2 of the Judicial Code).

As far as temporary residence ban/short-term barring order is concerned, since it is imposed by the public prosecutor and not by a judge, the victim will not have to attend the hearing when it is imposed. However, the family court will have to impose the extension of the barring order. The victim will have to attend the hearing in person if it is requested by the family court and if preliminary injunctions (requested on the basis of Article 4 §3 of the Act of 15 May 2012) concern minor children (as per Article 1253-ter/2 of the Judicial Code).

4.2.3 Can you request remedies?

Yes, please see below under 4.4. Please also note that in the framework of the extension of the short-term barring order, it is possible to apply for urgent preliminary measures (e.g., measures regarding children) or preliminary measures concerning the shared place of residency with the family court (Article 4 §3 of the Act of 15 May 2012).

4.2.4 Are there time limits?

Yes, as far as temporary residence ban/short-term barring order is concerned, on the basis of Article 3 §3 of the Act of 15 May 2012, it can only be imposed for a maximum period of 14 days starting from the notification to the person concerned. If the maximum period is not strictly necessary in order to ensure safety of the persons to be guaranteed, the public prosecutor can also decide to issue a barring order for a shorter period. On the basis of Article 5 § 2 of the Act of 15 May 2012, the family court can extend the temporary barring order once for a period of a maximum of three months by reasoned judgment.

As regards urgent preliminary injunctions related to the occupancy of the family home and the children, in the case of legal cohabitation (Article 1479 of the Civil Code),^[28] such measures are only applicable until the official cohabitation ends, unless the preliminary injunctions concern the mutual children of the official cohabitants.

4.2.5 Are there different rules in emergencies?

No. The procedure provided for on the basis of Articles 223 or 1479 of the Civil Code is always an emergency procedure that entails that the family court rules in preliminary relief proceedings. Therefore, the family court does not definitely settle a dispute between the parties but only provides urgent preliminary measures.

Before the Act of 5 May 2019, an emergency procedure was foreseen in the Act of 15 May 2012. This procedure, applicable only in cases of emergency, set out that the short-term barring order was first notified orally to the barred person and following this a copy of the document containing the barring order was issued to the barred person. With the entry into force of the Act of 5 May 2019, this emergency procedure has become the only procedure.

4.3 Judicial discretion

4.3.1 What discretion does a judge have in granting a civil protection order or other protective orders?

The public prosecutor and family court have rather limited discretion concerning short-term barring orders. Circular 18/2012 explicitly mentions that the measure must be limited to what is strictly necessary in order to ensure safety of the persons to be protected. Therefore, if there is another way to ensure the departure of the person at risk, this must be considered by the public prosecutor. This should be kept in mind when deciding on the length of the short-term barring order, given that it can be imposed for a shorter period than 14 days. When deciding on the extension of the short-term barring order and the length hereof, the family court should also keep the aforementioned in mind.

4.3.2 Are there age limits on who can obtain orders?

Yes, regarding protective orders obtained on the basis of Articles 223 and 1479 of the Civil Code, which can only be obtained by a spouse/legal partner/legal cohabitant. Given that the minimum age to marry/for legal cohabitation is, in principle, 18, there is an age limit to obtain an order as spouse/legal cohabitant. However, the urgent preliminary injunctions can concern the prohibition to have contact with the children residing in the family house.

No, regarding the short-term barring orders. Minors can also be included in the short-term barring order, which entails that the restraining order is also applicable to them.

4.4 Restitution and remedies available to victims

4.4.1 Can victims obtain reimbursement for costs and restitution paid?

Yes, on the basis of Article 1382 of the Civil Code, a victim of domestic violence will be able to request an indemnity for the damages they encountered from the person liable for these damages. This indemnity can be requested for both physical damages, such as medical costs, and psychological damages encountered. To be able to request an indemnity from the person liable for the damages he/she encountered on the basis of Article 1382 of the Civil Code, the victim has to prove that (i) he/she indeed encountered damages, (ii) the person the indemnity is asked from was at fault and (iii) there is a causal link between said fault and the encountered damages.

If the identity of the person liable for the damages is not known or if the indemnity cannot be obtained from the person liable for the damages (e.g., due to insolvency) nor from any insurances, a claim for compensation can be made to the Commission for Financial Assistance to Victims of Deliberate Acts of Violence (Commissie voor Financiële Hulp aan Slachtoffers van Opzettelijke Gewelddaden/Commission pour l'aide Financière aux victimes d'actes Intentionnels de Violence).^[29] The following three types of compensation can be requested, in principle:

A "primary compensation" for, among others, moral damages, medical and hospital expenses, loss of wages as a result of permanent or temporary incapacity for work. The maximum compensation amounts to EUR 125,000. Such compensation can only be requested after a judicial procedure.
An "urgent compensation" can be requested before a decision has been rendered in a judicial procedure. It is indeed sufficient that the victim has filed a complaint or if he/she is a civil party to an existing procedure. Such compensation can be requested if awaiting the end of the procedure could cause a significant damage to the victim. The maximum compensation amounts to EUR 30,000.
An "additional compensation" can be requested if the damages have increased notably within the 10 years after having received the "primary compensation."

4.4.2 Can they recover wages and profits lost?

Yes, if the victim can prove that the loss of wages and profits is a consequence of the domestic violence, the victim will be able to request an indemnity covering the loss of wages and profits under both procedures (i.e., on the basis of Article 1382 of the Civil Code and, if this is not possible, from the Commission for Financial Assistance to Victims of Deliberate Acts of Violence under the conditions outlined above).

4.4.3 Is a separate civil process required?

Yes. The protective orders obtained on the basis of Articles 223 and 1479 of the Civil Code or obtained on the basis of the Act of 15 May 2012 are obtained on the basis of preliminary relief proceedings, which means that the judge does not rule on the merits of the case. In cases of criminal procedure against the violent person, the victim can request an indemnity for the damages they encountered by being a civil party to the proceedings.

If there is no criminal procedure against the violent person, the victim can start a separate civil procedure to request an indemnity for the damages they suffered. This separate civil procedure will not be a preliminary relief procedure.

Fighting Domestic Violence

Belgium

Select a Topic

Quick Links

Quick Links