or a Belgian story that oscillates between the ‘Zero Tolerance Circular’ and the transposition into national law of the Istanbul Convention, adopted on 11 May 2011…
Not to mention the Act of 15 May 2012 on the temporary prohibition of access to the family home in cases of domestic violence, which falls squarely within the scope of the Convention. Indeed, on the one hand, it is aimed not only at punishment but also at prevention, and, on the other hand, it targets domestic violence and not just spousal violence… yet it is applied to a limited extent, as its implementation is so cumbersome.
In our view, this law remains the ideal model of what could be achieved in the fight against intra-family violence, but it needs to be revised to make its implementation less cumbersome.
As early as 8 February 2006, spousal violence was clearly defined by the interministerial conference as follows:
Violence in intimate relationships comprises a range of behaviours, acts and attitudes on the part of one partner or former partner aimed at controlling and dominating the other, including assaults, threats or verbal, physical, sexual or economic coercion – whether repeated or likely to be repeated – which undermine the other person’s integrity and even their social and professional integration. Such violence affects not only the victim but also other family members, including children. It constitutes a form of domestic violence. It appears that in the vast majority of cases, the perpetrators of such violence are men and the victims are women. Violence in intimate relationships is the manifestation, within the private sphere, of the unequal power relations between women and men that still prevail in our society
by Author
Belgium recognised that this was a societal problem and not merely a matter for couples.
However, through the measures adopted and the implementation carried out, Belgium chose to address domestic violence solely from the perspective of a relationship issue.
By ratifying the Istanbul Convention in 2016, the Belgian State, in order to avoid being found at fault, was obliged to take effective measures to combat domestic violence, including steps to prevent it, protect victims and prosecute perpetrators. The legislature had already taken some steps in this direction by introducing civil sanctions against perpetrators of domestic violence who are married or in a legally recognised cohabiting relationship, and by passing the Act of 15 May 2012.
Admittedly, the new provisions, adopted in 2018 as part of the reform of inheritance law and matrimonial property regimes, represent a step forward in the fight against domestic violence. However, the legislature was more concerned with extending the legal rights of surviving spouses and the possibility of preferential allocation of the family home to spouses married under the regime of separate property than with addressing domestic violence, for which there is still no clear definition, merely references to the listed articles of the Criminal Code, meaning that case law may vary depending on the judges’ discretion.
The major groups overlooked by this reform are de facto cohabitants, who nevertheless face the same problems as married couples or those in legal cohabitation arrangements, on the grounds that this difference in treatment stems, on the one hand, from the fact that it is difficult to define de facto cohabitation and to verify that the relationship is sufficiently close to give rise to legal effects and, on the other hand, from the freedom of choice afforded to the parties.
Whilst the Criminal Code has succeeded in incorporating a definition of de facto cohabitation by including the concept of a lasting emotional and sexual relationship (section 410 of the Criminal Code), the Civil Code has not managed to do so…
There are therefore still differences in the treatment of victims and perpetrators depending on whether they choose the status of married couple, legally cohabiting partners or de facto cohabiting partners.
Domestic violence, however, makes no such distinction; it occurs in all types of relationships, regardless of social status or gender, and at any stage in a couple’s life…
Liberty, equality and fraternity… 230 years on…
Is it not time to take a critical look at ourselves, to recognise domestic violence as a societal issue, and to commit all necessary resources – particularly in terms of education – to preventing it, rather than merely remedying and punishing it?
