Family law is a branch of civil law that governs and organises the legal relationships between people who are related by blood, marriage or adoption.
Family law mainly refers to two types of family ties: couple ties and kinship ties (ascendants and descendants).
I. Couple ties
With regard to couple ties, family law essentially determines the rules governing marriage, partnerships (known as 'PACS'), cohabitation, divorce and the termination of partnerships.
Every married couple must have a matrimonial property regime. This consists of a set of legal or contractual provisions governing the financial interests of the spouses and designed to regulate the fate of their assets and debts during and at the dissolution of the marriage.
Spouses who have not signed a marriage contract are subject to the community of property regime. However, before and during the marriage, they are free to choose to change their matrimonial property regime (universal community, separation of property, etc.).
A partnership (known as a "PACS") gives two people, called "partners", legal recognition of their shared life. It assumes that the two people, of different or the same sex, are living together as a couple and declare their partnership to the civil registrar.
The duties and obligations of the partners are similar to those of a married couple.
Partnership has implications in terms of civil law (rules on solidarity and liability applicable between partners), tax (tax relief) and social security (co-insurance, etc.).
The law of 27 June 2018 establishing the family court and reforming divorce and parental authority came into force on 1er November 2018. Since then, there have been two forms of divorce under Luxembourg law, namely divorce by mutual consent and divorce on the grounds of an irretrievable breakdown in marital relations. Fault-based divorce has been abolished.
Divorce by mutual consent may be requested jointly by the spouses if they agree on the breakdown of the marriage and its consequences. If the spouses have property to divide, a notary must inventory and value it. The spouses are then free to settle their respective rights to the property in question.
The spouses must also agree on many other points (their residence during the divorce proceedings, the residence of their children, each spouse's contribution to the education and maintenance of the children, the amount of any alimony to be paid, etc.). This agreement must be documented in writing by a lawyer or notary. The agreement must be approved by the court, which checks that it protects the best interests of the children and does not manifestly disproportionately harm the interests of either spouse.
Divorce on grounds of irretrievable breakdown of marital relations
Divorce on the grounds of irretrievable breakdown of marital relations may be sought by either spouse or, where there is agreement on the principle of divorce but not on all its consequences, by both jointly.
Irretrievable breakdown is established by the agreement of the spouses on the principle of divorce or by the request of only one spouse, maintained at the end of a reflection period that may not exceed three months, renewable once.
Legal effects of divorce
The legal effects of divorce are numerous and depend on the situation of the couple:
Family law also defines all legal relationships between parents and children. Parentage may result from natural procreation (children of a married or unmarried couple or from an adulterous relationship), adoption or medically assisted reproduction (MAR).
Natural filiation is legally established either by voluntary acknowledgement or by judicial declaration following an action to establish paternity or maternity.
Adoption may be simple (the child remains linked to the biological and adoptive family) or full (filiation severed with the biological family).
Applications for adoption are made by way of a request by a lawyer to the Court before the competent District Court, which checks whether the legal conditions have been met.
Adoption is open to all Luxembourg residents, whether nationals or not.
The conditions required to adopt are assessed in accordance with the national law of the adopter, whereas the conditions required to be adopted are governed by the national law of the adopted person, unless the proposed adoption confers on the adopted person the nationality of the adopter.
Medically assisted reproduction
Although Luxembourg still has no real law on medically assisted reproduction (MAR), it is open to all: heterosexual couples, lesbian couples and single women.
Bill 6568 A to regulate MAR has still not been adopted.
Surrogate motherhood is not authorized in Luxembourg.
Bill 6568 A is in favour of banning surrogate motherhood in Luxembourg as a medical procedure, while at the same time recognising, in the name of the child's best interests, surrogate motherhood validly carried out abroad, thereby conferring a dual parent-child relationship on the child.
Whether your case involves couple tiers, parentage or any other family matter, our team of lawyers will be honoured to advise you and defend your interests.