New obligation in EOT agreement: The best interest of the child

New obligation in EOT agreement: The best interest of the child

For some time now, the interests of the child have played a prominent role in divorce proceedings due to irreparable dislocation (EOO), mainly when the parents do not find an agreement regarding parental authority, maintenance payments or residence arrangements.

The interests of the child played a less prominent role in divorce by mutual consent (EOT). Indeed, it was always assumed that the EOT deed took into account the interests of the child, in what way did not need to be clarified. The interests of the child were mainly safeguarded by the controlling function of the judge. However, since parties are no longer required to appear in person before the Family Court, this controlling function of the judge was partially eroded.

To this problem, the legislature wished to respond with the law of March 27, 2024. After all, the interests of the child, the most vulnerable in the process of divorce, must always be safeguarded.

What does the new requirement entail?

Due to the change in the law, from April 8, 2024, one will have to explicitly indicate in the EOT agreement in what way the interests of the minor child were taken into account in the agreement reached. This is stipulated in the amended article 1288 Ger.W.

This applies to both EOT agreements reached through judicial and non-judicial mediation.

By requiring parents to clarify how they have taken the best interests of the child into account, the legislature is striving for a more thoughtful and child-friendly approach to divorce. We have seen this movement for some time; for example, we once wrote about the child who would make his or her own accommodation arrangements.

Practical implementation?

The new legislation thus creates a significant change in how parents act on their mutual agreements, but how should this be done practically?

Each EOT agreement must now specifically state what considerations were made regarding the best interests of the child and how they were taken into account. It will have to show how the choice of parental authority, residence and maintenance was made in the best interests of the child. The agreement will have to show to what extent the following matters were taken into account: the child's hobbies, the proximity of the school, the relationship with relatives, the relationship with plus parents and/or plus children...

If the agreement does not contain this information, the court will suspend consideration of the application until the parties have completed their agreement accordingly.

Also, the court may still order the personal appearance of the parties if necessary to further assess the best interests of the child or to clarify the measures taken.

This new legislation is thus a step forward in ensuring the welfare of children within divorce proceedings. For more information or specific assistance with the new requirements of the EOT agreement, our family law experts are ready to support you. Please do not hesitate to contact us at info@bannister.be or by calling 03/369.28.00.