Family reunification with a Belgian national who has not exercised his right to free movement (article 40ter)

 

[Article 40ter of the Act of 15 December 1980 amended by the Act of 10 March 2024 - Entry into force on 1 September 2024].

A Belgian national who has not exercised his or her right to free movement and residence may be accompanied or joined in Belgium by certain family members, under certain conditions.

Family members

The following are considered family members of a Belgian citizen: 

  • the spouse or the foreign national with whom he or she is in a registered partnership considered to be equivalent to marriage in Belgium;
  • the foreign national with whom he or she is in a partnership registered under a law;
  • the direct descendants and those of his or her spouse or registered partner aged under 18 or who are dependent upon him or her in the country of origin or provenance;
  • the first-degree relatives in the direct ascending line of a Belgian minor.
Conditions for family reunification

The conditions for family reunification are detailed below for each beneficiary.

Application for family reunification

As a rule, the application for family reunification is submitted to the Belgian diplomatic or consular post responsible for the family member's place of residence abroad (see Application submitted abroad). In some cases, the application may be submitted to the municipal administration of the place of residence in Belgium (see Application submitted in Belgium)..

The spouse or partner of a Belgian national who has not exercised his or her right to free movement or residence has a right to family reunification. This right must be recognised if the persons concerned can prove, by means of documents, that the conditions for family reunification have been met.

  • Marriage / partnership considered equivalent to marriage in Belgium

The applicant must be married to the Belgian national being joined or have entered into a partnership with him/her in Germany, Denmark, Finland, Iceland, Norway, Sweden or the United Kingdom.

If the applicant or the Belgian national being joined remarries, or in the case of a new relationship, the persons concerned must provide evidence of the dissolution of the previous marriage or relationship (divorce certificate, death certificate of the spouse or partner, etc.) in addition to evidence of the marriage or partnership.

In general, the applicant must present official documents in accordance with article 30 of the Act of 16 July 2004 on the Code of Private International Law or international conventions on the same subject to establish his or her relationship or relationship through marriage to the foreign national being joined.

Special provision: if the applicant cannot provide proof of the family relationship or relationship through marriage by means of official documents, the Immigration Office may take into account other valid evidence produced regarding this relationship. Otherwise, the Immigration Office may interview or arrange for interviews and investigations with the applicant or the Belgian national and, where applicable, propose an additional analysis (for example, a DNA test). [Article 44, paragraph 2 of the Royal Decree of 8 October 1981.]

  • Age

The applicant and Belgian national must be over 21 years of age. This minimum age is reduced to 18 years if the individuals prove that the marriage existed before the application for family reunification was submitted.

→ Submit the birth certificate of the applicant and the Belgian national, or any other document that validly proves their age. 

  • Means of subsistence

The Belgian national must have stable, regular and sufficient means of subsistence to meet their own needs and those of their family members and to avoid becoming a burden on the public authorities. 

For more information: Stable, regular and sufficient means of subsistence

  • Housing

The Belgian national must have sufficient housing to accommodate the family member(s) who have asked to join them, and which meets the conditions imposed upon real estate leased as a principal residence, as stipulated in Article 2 of Book III, Title VIII, Chapter II, Section 2 of the Civil Code.

For more information: Sufficient housing

  • Insurance

The Belgian national must have health insurance that covers the risks in Belgium for themselves and their family members.

For more information: Health insurance

  • Co-habitation

The applicant must come to live with the Belgian national.

The Immigration Office may have doubts regarding the real intention of the applicant and/or the sponsor to create a sustainable life together. In this case, the applicant and/or the sponsor may be invited for an interview and the opinion of the public prosecutor's office may be sought. 

If the investigation shows that the marriage is for the purpose of obtaining a residence benefit (e.g. a residence permit), the Immigration Office will likely deny the request for family reunification. These checks will also affect the examination period for the application for family reunification.

The legal partner of a Belgian national who has not exercised his or her right to free movement or residence has a right to family reunification. This right must be recognised if the persons concerned can prove, by means of documents, that the conditions for family reunification have been met.

  • Legal registered partnership

In Belgium, registered partnership refers to the declaration of legal cohabitation made before a civil registrar (see Articles 1475 et seq. of the Civil Code).

Submit the declaration of legal cohabitation or proof of a legal registered partnership.

Useful information:

  • The applicant and the sponsor must not be in a long-term relationship with another person. 
  • The partnership does not give the right to family reunification when it is concluded between (i) relatives in the ascending and descending line and relatives in the same line, or (ii) in the lateral line, between brothers, between sisters, or between brothers and sisters, or between uncle and niece or nephew, or (iii) between aunt and niece or nephew.
  • The applicant and the sponsor must not have been the subject of a final decision refusing the completion of the marriage based on Article 167 of the Civil Code. 
  • Stable and lasting relationship

The relationship between the applicant and the Belgian national must be stable and lasting. 

Proof of such a relationship can be provided in the following way:

  • The partners have lived together continuously in Belgium or another country for at least one year prior to the application; o
  • The partners have known each other for at least two years, prior to the application, and provide evidence that they maintained regular contact, by telephone, correspondence or electronic messages, and that they met three times in the two years prior to the application and that these meetings totalled 45 or more days; or
  • The partners have a mutual child.

→ Submit evidence of the stable and lasting nature of the relationship.

  • Age

The applicant and the Belgian national must be over 21 years of age. This minimum age is reduced to 18 years if the partners prove that they had been living together for at least one year before the application for family reunification was submitted.   

→ Submit the birth certificate of the applicant and the sponsor, or any other document validly proving their age, and, if applicable, proof of cohabitation for at least one year prior to the submission of the application.

  • Unmarried status

The applicant and the Belgian national must be unmarried.

→ Submit proof of unmarried status of the applicant and the Belgian national.

  • Means of subsistence

The Belgian national must have stable, regular and sufficient means of subsistence to meet their own needs and those of their family members and to avoid becoming a burden on the public authorities. 

For more information: Stable, regular and sufficient means of subsistence

  • Housing

The Belgian national must have sufficient housing to accommodate the family member(s) who have asked to join them, and which meets the conditions imposed upon real estate leased as a principal residence, as stipulated in Article 2 of Book III, Title VIII, Chapter II, Section 2 of the Civil Code.

For more information: Sufficient housing

  • Insurance

The Belgian national must have health insurance that covers the risks in Belgium for themselves and their family members.

For more information: Health insurance

  • Co-habitation

The applicant must come to live with the sponsor. 

The Immigration Office may have doubts regarding the real intention of the applicant and/or the sponsor to create a sustainable life together. In this case, the applicant and/or the sponsor may be invited for an interview and the opinion of the public prosecutor's office may be sought. 

If the investigation shows that the partnership is for the purpose of obtaining a residence benefit (e.g. a residence permit), the Immigration Office will likely deny the request for family reunification. These checks will also affect the examination period for the application for family reunification.

The direct descendant of a Belgian national who has not exercised his or her right to free movement or residence, en/or of spouse or partner, has a right to family reunification. This right must be recognised if the persons concerned can prove, by means of documents, that the conditions for family reunification have been met.

  • Descent

The applicant must prove descent from the Belgian national, spouse or partner.

In general, the applicant must present official documents in accordance with article 30 of the Act of 16 July 2004 on the Code of Private International Law or international conventions on the same subject to establish his or her relationship or relationship through marriage to the foreign national being joined.

Special provision: if the applicant cannot provide proof of the family relationship or relationship through marriage by means of official documents, the Immigration Office may take into account other valid evidence produced regarding this relationship. Otherwise, the Immigration Office may interview or arrange for interviews and investigations with the applicant or the Belgian national and, where applicable, propose an additional analysis (for example, a DNA test). [Article 44, paragraph 2 of the Royal Decree of 8 October 1981.]

→ Submit the birth certificate(s) that allow(s) for proof that the applicant is the direct blood relative in the descending line of the sponsor, spouse or partner. 

  • Age

The applicant must be under 18 years old or be dependent upon the Belgian national being joined and his/her spouse or partner in the country of origin or provenance. [Article 40ter, §2, paragraph 1, 2°, of the Act of 15 December 1980 amended by the Act of 10 March 2024 - Entry into force on 1 September 2024].

→ Submit the applicant's birth certificate or proof that the applicant is dependent upon the joined Belgian national and his/her spouse or partner in the country of provenance or origin. 

  • Parental authority

If the applicant has not yet reached the age of 18, he or she must prove that the Belgian national being joined, or his/her spouse or partner, exercises parental authority over him or her, including custody rights. If parental authority is shared, the other holder of parental authority must agree to family reunification. [Article 40ter, §2, paragraph 1, 2°, of the Act of 15 December 1980 amended by the Act of 10 March 2024 - Entry into force on 1 September 2024].

Useful information: if the Belgian national being joined or his/her spouse or partner cannot provide proof of parental authority by means of official documents in accordance with article 35 of the Act of 16 July 2004 on the Code of Private International Law or international conventions on the same subject, the Immigration Office will take into account other valid evidence provided by the applicant.

→ Submit proof that the Belgian national being joined or his/her spouse or partner, exercises parental authority, including custody rights, and, if parental authority is shared, that he/she has the agreement of the other holder of that authority.

  • Means of subsistence

The Belgian national being joined must have stable, regular and sufficient means of subsistence to meet his own needs and those of his family members and to avoid becoming a burden on the public authorities. 

Useful information: this condition does not apply if the Belgian is accompanied or joined only by a direct descendant under the age of majority.

For more information: Stable, regular and sufficient means of subsistence

  • Housing

The Belgian national must have sufficient housing to accommodate the family member(s) who have asked to join him, and which meets the conditions imposed upon real estate leased as a principal residence, as stipulated in Article 2 of Book III, Title VIII, Chapter II, Section 2 of the Civil Code.

For more information: Sufficient housing

  • Insurance

The Belgian national must have health insurance that covers the risks in Belgium for himself and his family members.

For more information: Health insurance

  • Co-habitation

The applicant must come to live with the Belgian national.

→ Submit any means of proof (air ticket or transport ticket, invitation to accompany or join the Belgian national, proof that the applicant and the Belgian national live under the same roof, etc.).

 

The first-degree relatives in the direct ascending line (father and mother) of a Belgian minor who has not exercised his or her right to free movement or residence have a right to family reunification. This right must be recognised if the persons concerned can prove, by means of documents, that the conditions for family reunification have been met.

  • Parenthood

The applicant must demonstrate that he/she is a first-degree relative in the direct ascending line of the Belgian minor being accompanied or joined.

In general, the applicant must present official documents in accordance with article 30 of the Act of 16 July 2004 on the Code of Private International Law or international conventions on the same subject to establish his or her relationship or relationship through marriage to the foreign national being joined.

Special provision: if the applicant cannot provide proof of the family relationship or relationship through marriage by means of official documents, the Immigration Office may take into account other valid evidence produced regarding this relationship. Otherwise, the Immigration Office may interview or arrange for interviews and investigations with the applicant or the Belgian national and, where applicable, propose an additional analysis (for example, a DNA test). [Article 44, paragraph 2 of the Royal Decree of 8 October 1981.]

  • Minority

The Belgian national must be less than 18 years old.

→ Submit the birth certificate of the Belgian national, or any other document that validly proves that the Belgian national is less than 18 years old.

  • Identity

Applicant must prove his identity with a valid identity document.

  • Parental authority 

The applicant must exercise parental authority, including custody rights, over the Belgian minor being accompanied or joined.

The applicant must also effectively look after this Belgian minor. [Article 40ter, §2, paragraph 1, 3°, of the Act of 15 December 1980, amended by the Act of 10 March 2024 - Entry into force on 1 September 2024].

Useful information: according to the Court of Justice of the European Union, the concept of "effectively looking after‘’ should be understood as being responsible for the day-to-day care and education without which the minor EU citizen would not be able to reside on the territory of the host Member State. Care and education of a marginal nature do not meet the condition of effective care laid down by the Court of Justice of the European Union, as it can be assumed that the right of free movement and residence of a minor Union citizen would not be hampered if the right of residence were denied to a parent who provides only minimal care. For this reason, a condition is set that the care provided by the parent must be effective.

The notion of providing effective care, in addition to day-to-day care and education, also includes the aspect of care and material assistance. 

→ Submit proof that the applicant exercises parental authority and custody rights and that he or she effectively provides care for the Belgian minor being accompanied or joined.

  • Accompaniment or joining

The applicant must accompany or join the Belgian minor in Belgium.  

→ Submit any means of proof (air ticket or transport ticket, invitation to accompany or join the Belgian minor, proof that the applicant and the Belgian minor live under the same roof, etc.).