Divorce, parental authority, and role of a family judge in Luxembourg

Divorce can be a challenging and emotional experience, particularly for children who are caught in the middle. In Luxembourg, the legal system places significant emphasis on ensuring that children’s well-being remains the central focus in matters of parental separation. With rising divorce rates, the country’s legal framework is designed to protect children’s rights and maintain stability in their lives, regardless of the changes within their family structures.

RTL Today spoke to Olivier Wies, a lawyer at Wies Law in Luxembourg City, to gain insight into the legal process following the separation and divorce of parents.

Parental authority

Under Luxembourg law, parental authority encompasses the rights and duties intended to serve the child’s best interests, ensuring their safety, health, education, and development.

Article 372 of the Civil Code defines parental authority as a means to protect these interests, while Article 374 establishes a child’s right to maintain personal relationships with ascendants, such as grandparents, with reciprocity as the guiding principle. The only limitation is conflict with the child’s best interests.

Article 378 allows a judge to grant visitation and accommodation rights to third parties, including relatives and non-relatives, if they can demonstrate significant emotional ties with the child. This provision is particularly relevant for individuals who have lived with the child for an extended period or played a key role in their upbringing. Notably, it also enables a child to petition the court for visitation rights.

The Luxembourg legal framework recognises the importance of preserving meaningful relationships in a child’s life. The family judge oversees parental responsibility, ensuring that custody and visitation arrangements align with the child’s welfare.

This system is especially vital in cross-border cases, where legal cooperation helps safeguard the child’s stability and rights, explains Wies.

Role of the family judge

The family judge in Luxembourg oversees parental authority matters, including joint or sole authority following separation or divorce, visitation and residence rights, and a child’s contact with relatives. The judge also handles child support and maintenance, ensuring obligations are adjusted based on each parent’s financial capacity.

The family judge addresses the following key issues:

• Applications relating to the exercise of parental authority (excluding those concerning the withdrawal of authority).
  This includes arrangements for the exercise of joint parental authority by the parents, whether married, separated, or divorced. The court will only grant sole parental authority to one parent when it is in the child’s best interests.
  
  
• Exercise of access and residence rights of a parent deprived of parental authority.
  These rights can only be denied for serious reasons.
  
  
• The child’s right to maintain contact with relatives in the ascending line.
  This right can only be disregarded in the best interests of the child. If necessary, the court determines the arrangements for contact between the child and the relative.
  
  
• Access and residence rights of other persons, whether relatives or not:
  These rights are granted in exceptional circumstances.
  
  
• Obligation to contribute to the child’s maintenance and upbringing.
  While the parents are living together, both are responsible for the child’s care. Upon separation, this obligation can be fulfilled through child support, based on the child’s needs and each parent’s ability to contribute. This obligation can continue after the child reaches the age of majority if the child is unable to support themselves.

Cross-border considerations 

When dealing with matters of parental responsibility involving children or parents who do not reside in Luxembourg or are of different nationalities, the legal framework is shaped by international regulations and conventions, particularly the Brussels IIb Regulation and the Hague Convention of 19 October 1996.

These are designed to ensure consistency, cooperation, and the prioritisation of the child’s best interests across borders. The laws of the country where the child resides will govern decisions related to parental responsibility, ensuring that the legal framework aligns with the child’s daily reality. This principle ensures that decisions regarding the child’s care, custody, and welfare are made in the context most familiar to the child’s living circumstances.

In cases where the child’s habitual residence changes, the law of the new habitual residence will apply, providing continuity and legal clarity as the child transitions to a new environment.

“It is important to note that the nationality of the child or the parties involved does not influence the determination of jurisdiction or applicable law, as the primary focus remains on the child’s well-being”, Wies adds.

“If filiation has been established in respect of both parents, they exercise parental authority jointly, whether or not they are married, in a civil partnership, separated, or divorced. If filiation has not been established in respect to one of the parents or if one of them is deceased, absent, or unable to express his/her wishes, the other parent exercises parental authority alone”, Wies explains.

High divorce rate

Luxembourg has one of Europe's highest divorce rates, alongside Finland, Denmark, and Sweden, with Italy and Ireland at the lowest, often due to religious influences. The country's wealth, diversity, and progressive values have reshaped attitudes towards marriage and divorce.

“Luxembourg’s wealth and diversity, along with modern values, influence how people live and sometimes end relationships. Divorce, while difficult, offers a chance to move forward and pursue personal happiness”, says lawyer Olivier Wies.

Divorce in Luxembourg is based on mutual consent or marital breakdown. Since 2018, divorce for fault is no longer recognised, though criminal actions like domestic violence affect alimony and benefits.

“The high divorce rate reflects both progress and challenges. It shows that people have more freedom and support to leave unhappy marriages,” Wies explains. He notes that while gender equality and financial independence have empowered individuals, modern pressures strain relationships.

“Expectations of constant happiness often clash with real-life challenges. Work-life balance, cultural differences, and stress are common in Luxembourg’s fast-paced society”, Wies adds.

OECD data suggests that in countries with high employment rates, spouses are less financially dependent, reducing the feeling of being "stuck" in unhappy marriages. The pandemic exacerbated these pressures, with lockdowns revealing relationship struggles alongside financial, childcare, and health concerns.

“Some turned to social media for emotional support, leading to more misunderstandings and conflicts”, Wies notes.
Access to counselling and family therapy can help couples manage challenges more effectively. “These resources can guide people in handling difficulties in healthier ways”, Wies concludes.