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THE REGULATION OF THE INSTITUTION OF MATRIMONIAL ENGAGEMENT IN THE NEW ROMANIAN CIVIL CODE

THE REGULATION OF THE INSTITUTION OF MATRIMONIAL ENGAGEMENT IN THE NEW ROMANIAN CIVIL CODE

Author(s): Nadia-Cerasela Aniţei / Language(s): English / Issue: 1-2/2011

Keywords: engagement; performance of engagement; content conditions for the performance of the engagement; form conditions for the performance of the engagement

The paper aims at analysing the institution of matrimonial engagement both in the Old Romanian Law and in the new Civil Code- that came into force by law no. 287 of July 17th, 2009. The 2nd Book of the new Civil Code, entitled “On Family” dedicates its 2nd title to marriage, and in Chapter I, art. 266-270, it deals with the institution of matrimonial engagement. The paper will show how the institution of matrimonial engagement is defined, the basic conditions of content and form needed to perform the matrimonial engagement, and we shall make proposals of lex ferenda should we consider that the regulations in the field are defective.

General Considerations on Personal Relations between Spouses under the Provisions of the New Civil Code

General Considerations on Personal Relations between Spouses under the Provisions of the New Civil Code

Author(s): Nadia-Cerasela Aniţei / Language(s): English / Issue: 7/2011

Keywords: effects of marriage; rights and obligations of spouses; personal relations between spouses; new Civil Code

The effects of marriage are brought under regulation in the Civil Code in Title II entitled "Marriage" Chapter V is dedicated to personal rights and duties of spouses (art. 307-311) and Chapter VI is dedicated to property rights and obligations of spouses (art. 312-372). Also, the Civil Code establishes the effects of marriage in other articles from different chapters. Also, we find some rights and obligations of spouses brought under regulation by rules belonging to other branches of law as follows: the Civil Code contains for example provisions relating to the irrevocability of donations between spouses (Article 937 Civil Code), Law no. 319/1944 in art. 1-5 sets the hereditary vocation of the surviving spouse and his/her right to habitation, etc. Moreover, the effects of marriage are set to rights in some international laws to which Romania is party or has ratified or acceded to, namely: the Universal Declaration of Human Rights (Article 16), the International Covenant on Civil and Political Rights (Article 23 paragraph 4 and art. 24),) International Covenant on Economic, Social and Cultural Rights (art. 10 paragraph 1), etc.2. In relation to the area of people, between whom these effects are produced,3, we distinguish the following types of relations: a. relationship between spouses; b. relations between spouses and their children; c. relations between a spouse and the relatives of the other spouse (affinity relations); d. relations between family members and other natural persons or legal persons. Relations between spouses refer to: a. personal relationships; b. economic relations; c. capacity of exercise.

Institution of the Family according to the Teaching of the Orthodox Church

Institution of the Family according to the Teaching of the Orthodox Church

Author(s): Nicolae V. Dură,Teodosie Petrescu / Language(s): / Issue: 2/2014

Keywords: family; Catholic Church; Orthodox Church; marriage

The teaching of faith of the Orthodox Church about family — both based on Revelation as well as on its expression and its formulation by its competent authorities, collegial-synodal or individual (Church hierarchy), over the centuries — does not differ in its essence from the teachings of the Catholic Church, because both of them have as their source the Holy Scripture and the Holy Tradition. Therefore, we could say that, within our theological dialogue, the authentic teaching of faith of our Churches concerning family can serve as a common platform for our theological debates, which must be certainly guided by the desire for the restoration of our ecclesial unity — that existed before the regrettable Schism of 1054 — animated by the ecumenical spirit of our times.

THE SCOPE OF THE NOTION OF PROMISE OF MARIAGE (ENGAGEMENT) IN ROMANIAN PRIVATE INTERNATIONAL LAW

THE SCOPE OF THE NOTION OF PROMISE OF MARIAGE (ENGAGEMENT) IN ROMANIAN PRIVATE INTERNATIONAL LAW

Author(s): Nadia-Cerasela Aniţei / Language(s): English / Issue: 1-2/2016

Keywords: Romanian private international law; classification that has to be given to an institution of law; institution of matrimonial engagement is regulated in the Civil Code; concept of engagement in Romania

The Civil Code, in Article 2585 does not define the notion of marriage promise, but Article 2585 paragraph (1) Civil Code., refers to the "substantive conditions required for concluding the promise of marriage" and paragraph (2) refers to "the effects of the promise of marriage and the consequences of breaching it" Regarding the Romanian private international law, the primary classification is performed by Romanian law, the law of the forum for any Romanian public authority. Thus, according to art.2558 of the new Civil Code "When the determination of the applicable law depends on the classification that has to be given to an institution of law or to a legal relationship, we should consider the legal classification established by the Romanian law (paragraph 1) Two observations must be made: first, that the term "institution of law" must be interpreted lato sensu, including legal terms as well, and the second that the exceptions in paragraphs 2,3,4,5, are strictly interpretative. So, according to art 2558 paragraph 1 of the new Civil Code, the primary classification is always performed based on the Romanian law, namely in accordance with the terms used by the Romanian legal system. Also, the classification of an issue as procedural or substantive is made by the Romanian law. So, to clarify the meaning of the conflicting rules of Article 2585 Civil Code it is necessary to make the primary qualification of the notion of the promise of marriage in Romanian law. The institution of matrimonial engagement is regulated in the Civil Code, Chapter 1 entitled “The Matrimonial Engagement”, in the 2nd Title, “Marriage” of the 2nd Book, “On Family”, art. 266-270. Art. 266, paragraph 1 of the Civil Code stipulates that the matrimonial engagement is the mutual promise to perform the marriage. In this context we shall study the concept of engagement in Romanian private international law.

Temporal Application of the New Romanian Civil Code Provisions Concerning Engagement

Temporal Application of the New Romanian Civil Code Provisions Concerning Engagement

Author(s): Mariana CIOCOIU / Language(s): English / Issue: 22/2016

Keywords: engagement; breaking; marriage; fiancés; doctrine; gifts;

Engagement is a marital, mutual promise subject to the fundamental conditions required for marriage conclusion and is a mandatory phase before marriage. The New Romanian Civil Code brings a series new stipulations that specifically protect family among which the chapter dedicated to the institution of engagement is a novelty in what Romanian law is concerned. From a sociologic and economic point of view engagement can be considered an event that parallels the religious ceremony in importance. Engagement expresses the same covenant, feelings, and emotions, is officiated in a holy place and forgoes marriage. In the modern sense of the term, promises of marriage are backed by the future spouses cohabitation. The paper tackles the question of engagement in the light of the new stipulations of the new Romanian Civil Code.

Considerations on the substantive conditions of the process of adoption in the regulation of the new Civil Code

Consideraţii privind condiţiile de fond ale adopţiei în reglementarea noului Cod civil

Author(s): Alina Doina Tanase / Language(s): Romanian / Issue: 1/2017

Keywords: substantive conditions of adoption; adopter; adoptee; consent; certificate; General Direction for Social Assistance and Child Protection; filiation; guardianship court

Along with the entry into force of the new Civil Code, it is offered a different perspective on the process of adoption, which fulfils an important social and family role, by ensuring that the adoptee it is offered an appropriate protection in an adequate environment at home.The present paper aims to inform the readers about certain aspects regarding the substantive conditions of the process of adoption, in accordance with the provisions of the new Civil Code and of Law no. 273/2004. For this purpose, the article highlights all the legal requirements that must be met by the people involved in the process of adoption, so that it is considered valid, as well as the sanction that is to be imposed if the provisions are not met.

Theoretical and practical aspects on guilt in marriage dissolution

Aspecte teoretice și practice privind culpa în desfacerea căsătoriei

Author(s): Alina Doina Tanase / Language(s): Romanian / Issue: 1/2016

Keywords: divorce; administrative procedure; notary public procedure; fault divorce; de facto separation; divorce decree

The new Civil Code brings upona new perspective on the institution of divorce, establishing three types of divorce procedures. Thus, the spouses may end their marriage by way of an administrative procedure or in front of a notary public, in case of mutual consent, or by way of a judicial procedure, when they address directly the competent court. This paper aims at presenting the cases in which the divorce is grounded on the fault of the spouses (the fault divorce cases), the manner in which such cases are regulated within the new Civil Code and some practical issues regarding the role of fault in divorce proceedings.

The Characteristics of Liberal Intention

The Characteristics of Liberal Intention

Author(s): Nicuşor Crăciun / Language(s): English / Issue: 1/2018

Keywords: donor; animus donandi liberal intention; intuitu personae character; liberality

As manifestations of will with the purpose of causing legal effects, liberalities are legal acts whose free character makes them dangerous for certain categories of people; this is why they are subject to a special legal regime, which derogates from common law.

Brief considerations regarding the jurisdiction of courts in the settlement of divorce based on foreign elements

Scurte consideraţiuni privind competenţa instanţelor judecătoreşti în soluţionarea divorţului cu elemente de extraneitate

Author(s): Lazăr-Ciprian Ureche / Language(s): Romanian / Issue: 03/2018

Keywords: divorce; foreign element; Regulation (EC) no. 2201/2003;

Undoubtedly, the link between the European law and the Romanian domestic law is and must remain closed. The principle of primacy of the European law in relation to the Romanian domestic principle is far from being a novelty. Therefore, including in the particular matter of the marriage dissolution, the participants in the Romanian civil proceedings having such an object must be subject to the specified principle. This study mainly intends to refer to the Council Regulation no. 2201/2003, which was enforced in a deficient manner by the Romanian judge. Therefore, the subject of this brief article shall consist in attempting to clarify the issues related to the enforceability and application of the specified Regulation, in relation to the jurisdiction of the Romanian courts vested with the settlement of the divorce judicial proceedings with foreign elements, having as starting point the recent Romanian judicial practice in the matter.

CONSIDERATIONS REGARDING THE CHILD’S HOME AFTER DIVORCE AND THE RIGHT TO HAVE PERSONAL MEETINGS WITH THE CHILD

CONSIDERAŢII REFERITOARE LA LOCUINŢA COPILULUI ŞI DREPTUL DE A AVEA LEGĂTURI PERSONALE CU ACESTA

Author(s): Ioana Nicolae / Language(s): Romanian / Issue: 12/2018

Keywords: divorce; child’s home after divorce; the best interests of the child; personal meetings with the child;

Parental divorce generates a series of changes in the child’s life, sense in which we analyzed in the present study how and criteria for determining the child’s home after divorce, as well as the correlative right of the parent with whom the child does not live to have personal bonds with the child.

The family, patria cordis

Familia, patria cordis

Author(s): Călina Jugastru,Ioan Ilieş Neamţ,Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 1-2/2019

ASPECTS RELATED TO PATRIMONIAL EFFECTS OF DIVORCE IN RELATION TO COMPENSATION AND COMPENSATORY PROVISION

ASPECTS RELATED TO PATRIMONIAL EFFECTS OF DIVORCE IN RELATION TO COMPENSATION AND COMPENSATORY PROVISION

Author(s): Carmen Oana Mihăilă / Language(s): English / Issue: 1/2019

Keywords: patrimonial effects; divorce; right to compensation; compensatory benefit; exclusive fault.

The social, economic, and psychological consequences of divorce are a reality that is more and more common nowadays. The paper analyses only part of the effects of marriage dissolution, in particular those relating to the right of the spouse who is not faulty of divorce, to receive compensation for the damage suffered (whether material or moral), but also a compensatory benefit which has the role of balancing the living conditions after divorce. If the right to compensation is a well-known institution, which, in the opinion of the specialists, constitutes a particular application of tort law, the compensatory benefit is a new institution introduced in the Romanian Civil Code, of French inspiration, which provokes some doctrinal controversies.

The role of the spousal agreement in the dissolution of the marriage

Rolul acordului de voinţă al soţilor la desfacerea căsătoriei

Author(s): Oana Elena Buzincu / Language(s): Romanian / Issue: 1/2020

Keywords: the role of the Spousal Agreement; the divorce procedure; parental agreement; the principle of consensualism; spouses; minor children; Civil Code; Code of Civil Procedure; judge; notary public; civil

In order to form or sometimes even dissolve the family relationships, the Spousal Agreement is the fundamental element. Therefore, the central point of the present work is dedicated to the role of the Spousal Agreement in the dissolution of the marriage, the agreement being seen both from the perspective of the divorce itself as well as from the point of view of its effects on the minor children of the two spouses, that is, on the ancillary requests. Throughout this study, the reader has the opportunity to acknowledge the clear theories concerning the way the agreement is assigned the primary role in the procedure of the amicable dissolution of the marriage in front of the judge, the notary public or the civil status officer. Furthermore, the multiple valences of the agreement are emphasized, starting with those regarding the settlement during the divorce procedure and ending with a possible accord that can be concluded after a relatively long period of time from the date of the dissolution of the marriage.

Possible contributive considerations regarding the need for the institutionalization of cohabitation in Romania

Posibile consideraţii contributive privind necesitatea instituţionalizării concubinajului în România

Author(s): Szilárd Sztranyiczki / Language(s): Romanian / Issue: 1/2020

Keywords: marriage; family; cohabitation; convention; union; engagement; children; goods; legislation; traditional model; modernist model;

In everyday life this modern form of coexistence is increasingly preferred to the classic form of marriage. Although the cohabitation relationship is not (yet) recognized by law, there is nothing to prevent an unmarried couple from living together and acquiring property together, incurring debts or giving birth to children. From a legal point of view, however, problems can arise in terms of relations between cohabitants, so that a dilemma remains: how and when will these relations be regulated by law?

(I) The prerogative of the non-resident parent to have personal relationships with his own child.Complex structure of the prerogative. Obligation of the resident parent to return the child to the country

(I) Prerogativa părintelui nerezident de a avea legături personale cu copilul său. Structura complexă a prerogativei. Obligarea părintelui rezident de a aduce copilul în ţară

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 2/2020

Jurisprudential analysis of child legal maintenance obligation from a double perspective – civil and criminal

O analiză jurisprudenţială a obligaţiei de întreţinere a copilului dintr-o dublă perspectivă – civilă şi penală

Author(s): Oana Elena Buzincu,Gabriel Tudoroaia / Language(s): Romanian / Issue: 1/2022

Keywords: child support obligation; parent; adult child; university; trainee; auditor of justice; income; family abandonment; bad faith;

The child support obligation as it has been and it is regulated in Romania allows for a wide overview to identify the elements on which its analysis is based. Therefore, this is why the present study comes as a jurisprudential addition to the mentions already contained in papers approaching the subject area of doctrinal analysis, and aims to outline aspects such as the support for an adult child who is pursuing a form of vocational training, other than university studies, as well as cases of suspension or termination of child support obligation, knowledge of the means of income which the contribution to the child support of a minor or adult child is based on, and even the identification of the conditions for applying the subsidiarity criterion in this matter. The institution of child support is, from a regulatory perspective, an “octopus”, whose body symbolizes the sphere of civil law and family law but its “tentacles” are all the other provisions applicable to a given situation, and here we can consider the sphere of criminal law, labor law, provisions of special laws on the exercise of a certain profession or even a qualification and others.

Theoretical and practical considerations on compensatory benefits in divorce proceedings

Consideraţii teoretice şi practice asupra prestaţiei compensatorii în procedura divorţului

Author(s): Mădălina Dinu / Language(s): Romanian / Issue: 1/2022

Keywords: compensatory benefit; exclusive fault; patrimonial effect; dissolution of marriage; usufruct; life annuity;

It is a unanimous fact that the main pawn of the society is the family, which represents the basic cell of the society. However, given that this “cell” is based on the emotional relationships between the “founders of the family”, they are often affected by the passage of time, causing almost inherently “fractures” in family life, some of which are “remedied” by the spouses, the marriage continuing, others having as sole remedy “the dissolution of the marriage by divorce”. Referring to the reality of family life, often the “fault” for the breakdown of family relationships is difficult to establish, there is always a “truth of the parties” (spouses) told by them before the court that is the starting point for the judiciary to establish the “legal truth”. Once the exclusive fault of one of the spouses has been established at the dissolution of the marriage, the court has the possibility (at the request of the party and conditioned by the fulfillment of the other legal conditions) to try to compensate the material and moral damage suffered by the innocent spouse, giving him a reparation or/and a compensatory benefit.

Judicial cooperation in civil matters. Regulation (EC) No 2201/2003

Cooperare judiciară în materie civilă. Regulamentul (CE) nr. 2201/2003

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 1/2022

Keywords: establishment of residence; Regulation (EC) No 2201/2003;

Un soţ care îşi împarte viaţa între două state membre nu poate avea reşedinţa obişnuită decât în unul dintre aceste state membre, astfel încât numai instanţele din statul membru pe teritoriul căruia se situează această reşedinţă obişnuită sunt competente să se pronunţe asupra cererii de desfacere a legăturii matrimoniale [CJUE, Camera a treia, hotărârea din 25 noiembrie 2021, IB c. FA, C-289/20, nepublicată, disponibilă (Online) la adresa www.curia.europa.eu, trimisă, în rezumat, de BOGDAN DUMITRU MOLOMAN

Alternate residence of the child after the parentsʼ divorce. Negative effects on the child (I). Maintenance obligation (II)

Locuinţa alternantă a copilului după divorţul părinţilor. Efecte negative asupra copilului (I). Obligaţia de întreţinere (II)

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 1/2022

Keywords: Alternate residence; parentsʼ divorce; Maintenance obligation;

(I) În stabilirea locuinţei minorului trebuie să se aibă în vedere şi sentimentul de stabilitate şi apartenenţă al acestuia. Acest sentiment trebuie însă să fie dublat de sentimentul de securitate emoţională al copilului în relaţie cu părinţii săi, asigurându-se că minorul nu este expus abuzurilor fizice sau emoţionale ori neglijenţelor din partea persoanei cu care locuieşte. Sentimentul de securitate implică ca relaţia pe care copiii o au cu părinţii lor să fie neostilă, să fie regulată, copilul să ştie că poate să-şi acceseze părintele atunci când are nevoie de el, copilul să nu fie expus la eventualele disensiuni dintre părinţi legate de creşterea şi educarea sa, copilul să nu fie folosit ca mesager între părinţii despărţiţi sau ca element de şantaj între părinţi. Stabilirea locuinţei alternative pentru 2 săptămâni la fiecare părinte nu este în interesul superior al minorei faţă de vârsta fragedă a acesteia şi de problemele de sănătate pe care le are. Stabilirea unei locuinţe alternante pentru unul dintre copii ar putea da naştere unui sentiment de abandon pentru celălalt, creând premisele unei discriminări între fraţi. Locuinţa alternativă nu este în măsură să creeze un sentiment de apartenenţă şi ar afecta sentimentul de siguranţă şi stabilitate în viaţa minorei. Un copil are nevoie de legături emoţionale stabile, de sentimentul apartenenţei necondiţionate la un grup de persoane (în esenţă, familia sa), de un mediu securizant care să-i permită experienţe normale de viaţă. (II) Obligaţia de întreţinere ce incumbă părintelui nerezident nu depinde de numărul de zile în care părintele nerezident are stabilit program de legături personale cu minorele, cu preluarea acestora la domiciliul lui [Jud. Sectorului 4 Bucureşti, s. civ., sent. civ. nr. 18067/2021, disponibilă (Online) la adresa www.rolii.ro, trimisă, în rezumat, de BOGDAN DUMITRU MOLOMAN].

Cristian Mareş, Family Law

Cristian Mareş, Dreptul familiei

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 2/2022

Keywords: review; Cristian Mareş, Family Law;

Review of: Cristian Mareş, dreptul familiei, ediţia 3, revizuită şi adăugită, editura c.h. beck, bucureşti, 2022, 426 pag.