Restraining Order via Summary Proceedings: An Effective Tool for Disrupted Relationships in Family Businesses

Gepubliceerd op 23/06/2025

Did you know that no less than 80% of Belgian companies are family businesses? These enterprises form the backbone of our economy but face unique challenges when family and professional relationships become intertwined. In family businesses, conflicts between relatives can escalate, with business disagreements taking on a personal dimension. When tensions rise to the point where the physical safety of employees or company property is at risk, a restraining order through summary proceedings can provide an effective legal solution to safeguard business continuity.

What is a restraining order?

A restraining order is a judicial measure that can be imposed to prevent a person from contacting another or approaching specific individuals or locations. In the context of a family business, this could mean prohibiting someone from:

Entering business premises
Contacting certain employees or family members
Being within a certain distance of the company premises

Different Legal Routes to a Restraining Order

There are several legal ways to obtain such an order in Belgium:

Through the criminal court
A restraining order can be imposed by a criminal judge as part of a criminal proceeding, for example, in cases of harassment (stalking) under Article 442bis of the Criminal Code. The criminal court can impose this order as a standalone penalty or as a condition of probation.

Disadvantages: This process can take a long time and requires actual criminal acts to have occurred and be proven. Moreover, the criminal court rules on guilt and fault, which may further strain relationships.

Through the family court
In a family context, the family court can impose a restraining order as part of measures related to divorce or disputes over parental authority.

Disadvantages: This procedure primarily focuses on strictly familial relationships and does not address the protection of business interests. It may also take considerable time.

Through summary proceedings
A restraining order via summary proceedings offers several advantages, particularly in a business setting:

Speed: A summary proceeding can be handled within days, while other procedures may take months.
Flexibility: The summary court judge has broad discretion and can tailor the measure to the specific situation.
No judgment on guilt: The judge in summary proceedings does not rule on the merits or on fault, which helps preserve relationships.
Penalty payment: The order can include a penalty, which serves as a strong deterrent.

Legal Requirements

The restraining order via summary proceedings is based on the authority of the president of the court of first instance to take any provisional measures deemed necessary in urgent cases (Article 584, first paragraph of the Judicial Code).

Three conditions must be met:

Urgency: There must be a situation requiring an immediate decision to prevent harm or serious inconvenience.
Provisional nature: The requested measure must be temporary and cannot definitively settle the merits of the case.
Prima facie right: The claimant must demonstrate a sufficient appearance of right, after which the court weighs this against the interests involved in the measure. A prima facie right exists when the right is not seriously disputed or is likely to be upheld in later proceedings.

Key Considerations

Proportionality
Since such an order is a highly intrusive measure, care must be taken to ensure that the requested measure is proportionate to the seriousness of the situation. For instance, one cannot simply demand that a person stay more than 10 kilometers away from a certain location, as this would severely restrict their freedom of movement—especially if that person lives nearby. Courts will therefore typically limit such orders to a radius of no more than one kilometer.

Evidence
It is important to collect sufficient evidence of the threat or danger, as the urgency of the situation must be convincingly demonstrated. Although this is a provisional measure and no criminal offense needs to have been committed, the threat must be real. Evidence may include email correspondence, witness statements, or police reports.

Duration
Since this is a provisional measure, a restraining order via summary proceedings will always be limited in duration. Due to the requirement of proportionality, the court will typically impose it for only a few months. If the threat persists, it may be wise to initiate full proceedings—either through the criminal court or the family court—to obtain a longer-term restraining order.

Conclusion

A restraining order via summary proceedings can be an effective tool for managing acute conflicts in family businesses and safeguarding the continuity of the company. By intervening legally in a timely manner, escalation can be avoided and a safe working environment ensured for all involved.