Children with different rights

If the institution of marriage is not what it was, it's also because of the children. May 1968 (again) created a major change in the field of filiation. Not so long ago, an illegitimate child (born to unmarried parents) had limited rights. This fact undoubtedly prompted a number of marriages at the time. However, the European Court of Human Rights condemned this situation in the 1970s, and a new reform giving all children the same legal status was adopted into law on March 31, 1987.

The European Court of Human Rights and the Constitutional Court both played - and continue to play - an important role in finding and repealing unjustified, discriminatory laws.  "Article 10 of the Constitution defines all Belgian citizens as equal. Article 11 guarantees the right to enjoy recognized rights and freedoms, free from discrimination. This means that all Belgian citizens are equal before the law," explains Paul Delnoy. “If someone feels that a law is discriminatory, they can address the Constitutional Court. And there are indeed many cases in which the Court finds a law discriminatory and invalid." One example relates to the recognition of illegitimate children. Previously, the law stipulated that in some cases, the mother’s consent was necessary for a biological father to recognise his child. Until a man who had been prevented from recognizing his child by the mother initiated a legal battle that resulted in the Constitutional Court overturning the law.

A history of “reserve”

The biggest difference between marriage and legal cohabitation relates to inheritance rights. The surviving spouse has many more rights to the deceased spouse's estate than the surviving legal cohabitant. In particular, the surviving spouse has what is called a "reserve". This means that the deceased spouse cannot completely disinherit the surviving spouse: the deceased cannot prevent the surviving spouse from having the usufruct of part of his/her assets, including the family home. This is not the case for the surviving legal cohabitant. First of all, the legal cohabitant's rights regarding the deceased's estate are very limited; secondly, there is no reserve in their case. Therefore the deceased can completely disinherit their legal cohabitant. 

And it's very unlikely that the Constitutional Court will regard these differences as discriminatory. It will be up to lawmakers to change this law sometime in the future, when marriage has lost even more of its former prestige.

In cases of remarriage, this famous reserve created a lot of anxiety for descendants whose parent married someone much younger. For the new spouse could potentially benefit from a usufruct in the estate for a number of years after the death of their spouse, which would delay the moment when the children could access their inheritance. But as Paul Delnoy explains in a recently published book , Les familles recomposées (2)(Blended families), these fears have been laid to rest by the "Valkeniers pact", named after the deputy behind the reform. This refers to a clause in the Civil Code that allows remarried spouses to give up their right to their reserve.

This is another example of legal progress that helps to ensure that all couples are equal. "In the end, on a number of levels, few differences in status remain,” says Paul Delnoy. “And all differences are not necessarily discriminatory. The law works well for assets, but it gets more complicated when people are involved. That's because no law can mandate agape, one of the four Greek words which represents love in the spiritual, unconditional sense…" 

(2) Philippe DE PAGE, André CULOT, Isabelle DE STEFANI et al., Les familles recomposées. Défis civils, fiscaux et sociaux, Limal, Anthemis, coll. "Patrimoines & fiscalités", 2013, 262 p.