Belgian Nationality: The Constitutional Court sanctions a loophole for children of expatriates

The Constitutional Court has ruled that Article 8, § 1, paragraph 1, 2°, b), of the Belgian Nationality Code, which denies any attribution of nationality to a child born abroad to a Belgian parent who was also born abroad when that parent dies within five years of the birth without having made the required declaration, is unconstitutional. Judgment No. 51/2026 of April 23, 2026, docket 8427, rendered on a preliminary ruling from the French-speaking Court of First Instance of Brussels, was published in the Belgian Official Gazette on October 20, 2026, under reference C − 2026/006343, p. 56649.

A five-year deadline and a declaration reserved for the parent

The dispute originates from a judgment dated January 22, 2025, by the French-speaking Court of First Instance of Brussels, the copy of which reached the Court’s registry on February 11, 2025. The jurisdiction questioned the Court on the compatibility of the provision with Articles 10, 11, and 22bis of the Constitution, read alone or in combination with Articles 8 and 14 of the European Convention on Human Rights and Articles 3 and 7 of the Convention on the Rights of the Child.

The Code, resulting from the law of June 28, 1984, distinguishes three scenarios for a child born abroad:

• Belgian parent born in Belgium or in a territory under Belgian sovereignty: attribution by operation of law;
• Belgian parent born abroad: attribution only if that parent has made, within five years of the birth, a declaration claiming Belgian nationality for their child;
• Absence of any other nationality: attribution by operation of law until age 18 or emancipation.

The Court recalls that this five-year deadline is a foreclosure period, which may be extended by judicial decision in cases of force majeure (Brussels Court of Appeal, October 24, 2019, 2019/FQ/3). It also notes that a judgment dated August 12, 2022, from the French-speaking family court of Brussels (R.G. No. 21/6856/A) admitted that no specific form is required, and that steps taken may be assimilated to a declaration. However, only the Belgian parent may declare: neither the other parent nor a third party may do so in their place.

A disproportionate difference in treatment

The Court compares two categories of children born abroad to a Belgian parent born abroad: those whose parent is alive on the fifth anniversary and those whose parent died before then, without a declaration or steps taken. It deems the situations comparable and the criterion objective, but finds that the difference in treatment produces disproportionate effects, incompatible with Article 22bis of the Constitution, which makes the best interests of the child the primary consideration.

It rejects the exception raised by the Council of Ministers, which supported the unnecessary question, and limits its examination to cases where the will of the deceased author cannot be deduced from the file. She emphasizes that the death of the author does not deprive the child of all effective links with Belgium, particularly when other family members are Belgian.

No other means of acquisition

The ruling insists: the child concerned has no other means of obtaining Belgian nationality by virtue of their filiation.

• The option available between the ages of 18 and 22 under the former Articles 13 and 14 of the Code was abolished by the law of December 4, 2012, making the acquisition of nationality immigration-neutral.
• Articles 12bis, 17, and 19 of the Code require the person to have reached the age of 18 and to satisfy the residency condition of Article 7bis, which excludes children residing abroad.
• Article 8, § 2, protects the child whose author dies before their birth, but the legislator did not envision death within five years following the birth.

The legislator called to correct

The Court rules as a matter of law that the provision violates Articles 10, 11, and 22bis of the Constitution in that it does not allow the declaration to be made when the Belgian author, who was themselves born abroad, died within five years of the birth without having made it. It is up to the legislator to remedy this unconstitutionality; in the meantime, the competent courts and authorities must end the consequences of the finding, expressed in sufficiently precise and complete terms. The judgment was rendered in French and Dutch on April 23, 2026, presided over by Pierre Nihoul, with Frank Meersschaut as clerk.

For the families concerned, the decision immediately opens the way for declarations or judicial recognitions that were previously impossible, without waiting for a legislative amendment. It also recalls that the Belgian nationality of a parent who died prematurely can no longer be opposed to the child as a mere lack of formality.

Source: Moniteur belge, October 20, 2026, excerpt from judgment no. 51/2026 of April 23, 2026, roll 8427, reference C − 2026/006343, p. 56649.