DECLARATION OF attribution of BELGIAN NATIONALITY FOR YOUR CHILD BORN ABROAD: A STRICT LEGAL DEADLINE IN THE FACE OF PRAGMATIC CASE LAW

Your minor child and you are born abroad? You are of Belgian nationality and wish to pass on this citizenship to them?

The declaration of Belgian nationality attribution

The Belgian nationality code requires in this situation that you "declare" your claim for Belgian nationality for your child. This declaration, which generally takes the form of submitting several official documents and signing a declaration form by the parent at their consular post or Belgian municipality, must take place within a short period of five years from the child's birth. 

For Belgian administrative authorities, this deadline is generally unambiguous and final. Once exceeded, regardless of the circumstances, the doors will close and they will refuse the parent to declare their child's Belgian nationality.

Faced with this blockage, the Belgian parent will then have no choice but to turn to the Belgian Family Court to obtain a ruling granting an extension of this five-year deadline.

Belgian courts are pragmatic regarding these situations. It emerges from the Belgian case law from recent years that the five-year period can be extended under two circumstances:

• Force majeure 

• The best interests of the child  

Force majeure

A force majeure is an event that prevents the parent from declaring the Belgian nationality of their child within five years of their birth, without any fault on their part. It is established that a force majeure allows for an extension of the five-year period, with the burden on the Belgian parent to prove it.

Although we believe that the ignorance of the existence of this deadline and the professional or family burden can constitute a force majeure, at present, Belgian courts are reluctant to accept these constraints as such.

However, they are more receptive in situations of physical impossibility to go to the Consulate or to collect documents for the declaration of attribution, such as in times of war, pandemic, serious political instability, but also in cases of poor management of the case by the authorities themselves, resulting in a delay not attributable to the Belgian parent. In this case, Belgian courts are more inclined to grant an additional period to declare the child's Belgian nationality at the consular post or the competent Belgian municipality.

The best interests of the child 

If a force majeure cannot be demonstrated, is it nevertheless in the best interest of this child to become Belgian? If the answer is positive, then an extension of the five-year deadline must be granted. It is encouraging to note that, in recent years, Belgian courts have also followed this reasoning.

If the Belgian parent proves their effective family, cultural, economic links and those of their child with the Belgium and Belgian nationals, Belgian courts admit that it would be detrimental for the child to be deprived of the Belgian nationality, and by extension the European citizenship, and therefore grant an extension of the deadline to declare the child's Belgian nationality.

Conclusion 

We can only rejoice at the current predominant view of Belgian courts to consider a force majeure and the best interest of the child when asked to grant a five-year extension for the declaration of Belgian nationality by a Belgian parent. This will allow many Belgians to be able to transmit their Belgian nationality to their child despite the five years having passed.. 

This also respects the spirit of the law, which is simply to ensure a real effective link between Belgium and the child when they receive the Belgian nationality from their parent.

However, it still rests on the Belgian parent to prove with certainty the force majeure or the best interest of the child to become Belgian, at the risk of being denied this extension by a court that would otherwise not be sufficiently convinced.

Do you find yourself in this situation? Are you unsure how to pass on your Belgian nationality to your children? Our lawyers will be happy to assist you at all stages of your procedures for granting Belgian nationality to your children.