REAL, Avocats à la Cour
On May 27th 2016, the Luxembourg government presented a new draft legislation reforming most of family law in Luxembourg and at last proposed equal rights for fathers and mothers regarding their parental rights.
In this context parental rights can be defined as the set of decisions that have to be taken by a father and a mother in relation to the person and also the assets of their minor child in order to safeguard its interests. These decisions include, for example, academic or medical decisions.
Currently, the situation is different for married and unmarried parents. Parental rights are indeed exercised jointly by married parents. In addition, in the case of a divorce, Article 378 of the Civil Code stipulates that parental rights must be exercised by the parent who has custody of the child.
A parent without custody of the child therefore cannot take important and essential decisions regarding the life of the child. The Constitutional Court criticized this legal provision and declared it unconstitutional as “the legislators don’t authorize two divorced parents to exercise jointly parental rights on their common children” (Mém. A197 of 22/12/2008 p.2617).
The actual legal framework is even more unequal and discriminatory for unmarried parents as the law stipulates that the parental rights of unmarried parents are exercised by the parent who voluntarily recognised the child, if it was recognised only by one of them.
Where the father and the mother both recognise the child, Luxembourg’s Civil Code states, in Article 380, that the mother exercises parental rights.
The Constitutional Court also declared in its judgment of March 26th 1999 that this legal provision of the Civil Code is unconstitutional as it is contrary to citizens’ equal rights before the law.
The legal framework in place at present is therefore discriminatory not only between married parents and unmarried parents but also between fathers and mothers.
As this legal framework has been strongly contested for many years by law professionals and also by parents, the legislator plans to amend the actual law by the draft legislation n°6996.
The draft legislation proposes a fundamental reform of the actual legal provisions regarding parental rights. Taking into consideration that new forms of union other than marriage now legally exist in Luxembourg, the text of the draft legislation proposes putting parents on equal footing regardless of their marital status.
The concept of co-parenthood, which will continue beyond the separation of the parents, constitutes the main focus of the reform of parental rights. The draft legislation therefore establishes the principle that parents, married or not, can jointly exercise parental rights in the best interests of their child.
Parental rights will then be defined in relation to the child’s interests, which will be the sole criteria in establishing the parental rights. The draft legislation recommends that a child whose parents are separated will continue to have close and direct ties with both parents.
Moreover, Article 372-1 of the draft legislation states that the agreement of both parents will be necessary for every act that falls within the scope of parental rights when they exercise them jointly. This agreement is needed both for usual acts and also for unusual acts, with the difference that for usual acts the agreement is presumed.
This paragraph puts an end to the unequal treatment between parents of a child born out of wedlock, which remained in Luxembourg law despite the Constitutional Court ruling n°7/98 of March 26th 1999.
Nevertheless, in cases of disagreement, the text provides that the parents will be able to conclude a written convention on their parental rights, which can be approved by the family law judge who can also be addressed by one of the parents when they cannot agree on the conditions of the execution of their parental rights.
This draft legislation will also change the actual jurisdiction, establishing a single family law judge and reforming divorce litigation and financial alimony.
Luxembourg will therefore, after many years of discussion, finally see this draft legislation take effect in 2018.