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The Romanian Private International Law Applicable to Personal Effects of Marriage as Regulated by Article 2589 (2) of the Romanian Civil Code

Legea aplicabilă efectelor personale ale căsătoriei în dreptul internaţional privat român conform dispoziţiilor articolului 2589 alineatul 2 din Codul civil român

Author(s): Nadia-Cerasela Aniţei / Language(s): Romanian / Issue: 02/2017

Keywords: the spouses; the law applicable to the general effects of marriage; law governs the personal effects of marriage; personal relations between spouses in the Romanian private international law;

Article 2589 of the Civil Code with the marginal title "The Law Applicable to the General Effects of Marriage" states: "The law determined according to par. (1) applies both to the personal effects and to the patrimonial effects of the marriage which that law governs and from which the spouses can not derogate, irrespective of the matrimonial regime chosen by them.” ( paragraph (2)) Studying the provisions of art. 2589 paragraph (2) We propose to answer the following questions: How do we interpret the provisions of art. 2589 paragraph (2) C refer to the law applicable to the personal effects of marriage? What are the situations in which the Romanian law governs the personal effects of marriage according to the provisions of art. 2589 paragraph (2) C civ? How do we primary qualify the notion of personal effects of marriage from the perspective of Romanian private international law?

The primary regime - a family protection guarantee. Ways to balance the powers of the spouse

Regimul primar-garantul protectiei familiei.modalitati de echilibrare a puterii sotilor

Author(s): Carmen Oana Mihăilă / Language(s): English / Issue: 1/2018

Keywords: primary regime; family home; marriage expenses; conventional mandate; judicial authorization; limitation of the spouses` powers.

The form of adoption in Romanian private international law

Forma adopţiei în dreptul internaţional privat român

Author(s): Nadia-Cerasela Aniţei / Language(s): Romanian / Issue: 03/2018

Keywords: Romanian Civil Code; Romanian private international law; the law applicable to the form of adoption; the international adoption procedure in the Romanian system;

Article 2609 of the Romanian Civil Code with the marginal title “The law applicable to the form of adoption” reads as follows: “The form of adoption is subject to the law of the State on whose territory it is terminated.” If the adoption with an extranet element ends in the territory of Romania, according to the Romanian law we will have to qualify primary the notion of formal conditions necessary for the end of the adoption. In this context, taking into account the provisions of art. 2558 par. (1) of the Civil Code we will perform the primary qualification according to Romanian law as a law of the forum for any Romanian public authority of the notion of “formal conditions necessary for the end of adoption”. When drafting the article, we will take into account the provisions of the Romanian Civil Code on adoption, the revised European Convention on the Adoption of Children adopted in Strasbourg on 27 November 2008, ratified in Romania by Law no. 138/2011 published in the Official Gazette no. 515 of 21 July 2011, the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, ratified in Romania by Law no. 84/1994 published in the Official Gazette no. 298 of 21 October 1994, Law no. 273/2004 on the legal regime of adoption republished in the Official Gazette no. 739 of 23 September 2016 and updated in 2018.

CONSIDERATIONS CONCERNING THE AGE THRESHOLD IN THE CRIMINAL LIABILITY OF MINORS

CONSIDERAŢII REFERITOARE LA PRAGUL DE VÂRSTĂ ÎN RĂSPUNDEREA PENALĂ A MINORILOR

Author(s): Roxana-Maria Sterejan / Language(s): Romanian / Issue: 09/2018

Keywords: Criminal law; Criminal Code; legal conditions; minors; criminal liable; lack of discernment; criminal acts; under 14 years old; legal authorities;

The person committing acts under criminal law must be held liable if he meets the legal conditions. One of these is the age he must have at the time of the crime. The Criminal Code stipulates that minors are criminally liable from 14 years old, before that there is an absolute presumption of lack of discernment. But what if the person committing criminal acts is under 14 years old? How can the legal authorities intervene in such situations?

ATTRIBUTION OF LAST NAME TO A CHILD. NATIONAL AND EUROPEAN ASPECTS

ATTRIBUTION OF LAST NAME TO A CHILD. NATIONAL AND EUROPEAN ASPECTS

Author(s): Oana-Nicoleta Retea / Language(s): English / Issue: III/2015

Keywords: acquisition of the surname, recognized child; filiation; guardianship court; right of choice;

Name of the child is the phrase that defines the attribute of his identification resulted in the name to be assigned at birth registration in the Register of Civil Status. The name is composed of last name and first name. Family name is that part of the name that indicates the connection of the individual with a certain family and designates in its relations with other family members. The attribution of the name can be done, as provided by law, by two processes: acquiring the name and establishing the name. Depending on how the child’s filiation has been established there are three hypotheses of acquiring the surname:the case of the child from marriage,the child out of marriage and the one with unknown parents.

Obligation to support – a child’s right. Methods of determination and execution of the obligation

Obligaţia de întreţinere – un drept al copilului. Modalităţi de determinare şi de executare a obligaţiei

Author(s): Cristina Gabriela Frenţiu / Language(s): Romanian / Issue: 1-2/2019

Keywords: maintenance; gross and net salary; income; necessary means; execution of the obligation;

The child maintenance is an obligation that belongs to both parents. It is irrelevant if the parents are living together, are separated, divorced, if the child is from or out of marriage or is an adopted one.This obligation consists in providing food, housing, clothing, medicines; spiritual needs, providing the necessary means for bringing up, education, teaching and professional training.The maintenance obligation can be established during the divorce or in a separate action.For the parents who are living abroad in the European Union member states, the applicable law regarding the maintenance obligation is determined in accordance with the European Union regulations.The obligation is established according to the income of the debtor parent and the needs of the child creditor. It is due until the child reaches the age of 18 or if he continues the studies until the completion but no longer than the age of 26.Mainly, the obligation of maintenance is executed in nature, providing those necessary for living and, as the case, the means for education, teaching and professional training.Only if the debtor doesn’t accomplish his obligation voluntarily, in nature, the court dispose the execution by paying a maintenance allowance, settled in money, in the form of a fixed amount or a percentage of the net monthly income. If the obligation is established in a percentage, the title has to be sufficiently determined because the notion of “any kind of salary income” can be interpreted in several ways.That is why the title must show whether gross or net salary is taken into account, if additional payments, such as holiday or Christmas bonuses or payments granted for overtime, and/or some material benefits are also taken into account.

THE CONTRACTUALIZATION OF FILIATION AND MEDICALLY ASSISTED HUMAN REPRODUCTION TECHNIQUES

THE CONTRACTUALIZATION OF FILIATION AND MEDICALLY ASSISTED HUMAN REPRODUCTION TECHNIQUES

Author(s): Carmen Oana Mihăilă / Language(s): English / Issue: 1/2020

Keywords: maternal filiation; paternal filiation; MAHR; biological mother; child;

The last century has brought with it many scientific discoveries in the field ofreproduction, which, besides being considered steps towards a new biological revolution, poseproblems in the field of law, especially in the family (filiation) or succession. However, theconviction that all that means scientific or medical discovery is the equivalent of a moral, corrector legal fact must not be absolute. Is it ethical, is it moral to use these techniques? Who couldanswer this question? Probably a balance must be found between the scientific and the moral.Can we be afraid of what might happen, namely what some authors (Guțan 2011) call eugenicselection (Popescu 2013)? Since 1978, since the first assisted birth, progress has been made inall areas. Countries such as the UK, US or Belgium have permissive legislation on medicallyassisted human reproduction techniques, others like Italy or Germany only allow certainreproductive techniques.With regard to the techniques of medically assisted human reproduction, the ECHRjurisprudence shows that they raise problems that are ethically and morally sensitive. Also, thereis no uniform approach in Europe in this area, therefore the decision on the principles andpolicies to apply in this sensitive area has to be taken by each state.

Child’s marriage. “Sweet 16”. A comparative view

Căsătoria copilului. “Sweet 16”. O privire comparativă

Author(s): Carmen Oana Mihăilă / Language(s): Romanian / Issue: 1/2020

Keywords: child marriage; traditional practice; UNICEF; minimum age for marriage;

Child marriage is a problem that crosses the globe, religions, cultures or ethnicities. The child-husband, especially the child-wife are found from Europe to Latin America, from the Middle East to South Asia. The marriage of girls before the age of 18 is a reality that cannot be denied. Most of the time, it is the parents who encourage these marriages, in the hope of financial and social benefits. They seek to reduce the financial burden facing the family. There is also a misconception that marriage gives women greater protection. Gender inequality, poverty, level of education, family beliefs, natural disasters, the situation of refugees are some of the factors that lead to the perpetuation of this phenomenon. This form of exploitation of girls brings with it complex psychological, physiological and socio-economic problems. The cruel reality is that for these girls, marriage is not a chance but a violation of their rights, a means of compromising their development and education. Marriage to a child should be seen as a form of sexual violence. The Universal Declaration of Human Rights provides in art. 16 the free and full consent of the future spouses at the conclusion of the marriage. How can a 12-year old girl’s consent be free and full when she is not mature enough to make such decisions? The minimum age for marriage is imposed for several psychological, moral and biological reasons. Unfortunately, in many countries such as Niger, Ethiopia, Sudan, Iraq, Brazil and many others, it remains a traditional practice that governments are trying to stop.

MARRIAGE CONVENTIONS. AN OVERVIEW IN ROMANIAN AND COMPARATIVE LAW

MARRIAGE CONVENTIONS. AN OVERVIEW IN ROMANIAN AND COMPARATIVE LAW

Author(s): Carmen Oana Mihăilă / Language(s): English / Issue: 1/2021

Keywords: spouses; marriage convention; matrimonial regime; patrimonial relations; opposability;

Responding to current needs related to family, marriage, divorce, divorce settlement, the Civil Code provides the spouses with a new legislative technique, with tradition in community law and not only, known in our legal system until the communist regime declared it immoral, as the marriage convention. The choice of the matrimonial regime that best suits the wish of the spouses to live together, the possibility of changing it during the marriage, the imposition of special publicity formalities of the marriage conventions to protect the third parties, are elements of novelty of special importance that exceed the obvious perhaps normal shortcomings (starting with the lack of a legal definition of the marriage convention, with the possible derogations from the chosen matrimonial regime that can create the possibility of the abusive exercise of the rights of the spouses). Presenting specific elements of this institution in the European, American or Islamic system can create an overview of what pre- and post-marital contracts mean today.

CURRENT CONSIDERATIONS REGARDING THE LEGAL REGIME OF CONTRIBUTIONS CONSISTING OF COMMON PROPERTY OF THE SPOUSES WHEN SETTING UP COMPANIES, ASSOCIATIONS OR FOUNDATIONS

CURRENT CONSIDERATIONS REGARDING THE LEGAL REGIME OF CONTRIBUTIONS CONSISTING OF COMMON PROPERTY OF THE SPOUSES WHEN SETTING UP COMPANIES, ASSOCIATIONS OR FOUNDATIONS

Author(s): George-Bogdan Ioniță / Language(s): English / Issue: IX/2021

Keywords: contribution; legal communities regime; common good; associate and society;

This research aims to analyze the provisions regarding the possibility regulated by the current Civil Code to be able to bring as contribution a common good of the spouses to the establishment of a company, association or foundation. In this sense, in the first part we will mainly analyze the provisions regarding the legal community regime and we will also analyze the scope of the notion of “common goods” of the spouses. The second part will have as main objective the continuation of the analysis on the types of companies where the contribution of a common good is possible as well as the types of regulated contributions in the corporate matter according to the legal regime prescribed by the current Civil Code. In carrying out this research, the legal provisions in force were analyzed, as well as the opinions of the specialists transposed in the existing specialized doctrine in the field.

The minor’s medical secrecy and the exercise of parental authority (Article 487 of the Civil Code): protection or harm?

Secretul medical al minorului şi exercitarea autorităţii părinteşti (articolul 487 din Codul civil): protecţie sau prejudiciu?

Author(s): Maria Aluaş / Language(s): Romanian / Issue: 1/2021

Keywords: minors rights; patients’ rights; confidentiality; parental authority; physicians duties toward patients;

Minors’ medical secrecy or confidentiality is a topic faced especially by health care professionals in current medical practice. The conflict raises between two different physician’s obligations toward the patient’s confidentiality and informed consent. The informed consent procedures imply always the involvement of minors’ parents/legal representatives. In particular cases when the minor claims, explicitly the right to confidentiality and the doctor consider that this is for guaranteeing the best interest of the minor the parents should not be informed about the minor condition. But, if the minor needs a specific treatment or intervention, the doctor cannot proceed without having the consent of parents. Therefore, how to prioritize and harmonize these two conflicting obligations? This paper illustrates some particular situations when the exercise of parental authority seems not to be the best choice for a minor medical condition.

The maintenance obligation of the adult child. Analysis of the conditions regarding the person of the creditor and a special approach of the notion of “state of need”

Obligaţia de întreţinere a copilului major. Analiza condiţiilor referitoare la persoana creditorului şi o privire specială asupra noţiunii de „stare de nevoie”

Author(s): Paula-Alina Lupu / Language(s): Romanian / Issue: 1/2021

Keywords: maintenance obligation; adult; state of need; continuing the studies; incapacity for work;

The relative presumption of the state of need operates only in the case of the minor, not in the case of the adult whose, in application of Article 499 paragraph (3) of the Civil Code, apart from the condition of continuing his/her studies, is required to prove the state of need, but also the impossibility of maintaining himself/herself as he/she has full capacity to exercise and is, in principle, fit for work. The reason for regulating Article 524 of the Civil Code – in a different form from the previous one – was to extend the notion of the impossibility to maintain himself/herself (to the old regulation which took into account the resources acquired by own means) by including, at present, in that notion, all those situations in which, by his/her own means, but also indirectly or independently of his/her actions, the creditor would not have the possibility to ensure his/her own maintenance. At the same time, it is important to distinguish between the impossibility of work and the impossibility of maintenance from work, the first notion leading, indeed, to the old terminology used by Article 86 of the Family Code, namely the incapacity for work but, taking into account that a person may not be in need, although he/she may be unable to obtain income by his/her own means, in the interpretation of Article 524 of the Civil Code, it is going to be considered that there are incident two conditions that must be met by the creditor of the obligation and not one, deduced from the second.

The legal obligation to support the child – an institution with incidence in the field of civil and criminal law

Obligaţia legală de întreţinere a copilului – o instituţie cu incidenţă în sfera dreptului civil şi a celui penal

Author(s): Oana Elena Buzincu,Gabriel Tudoroaia / Language(s): Romanian / Issue: 2/2021

Keywords: maintenance obligation; minor; major; court decision; parents; notary public; court; family abandonment; ex officio notification;

The maintenance obligation, as it was and is regulated today, falls within the Romanian legal landscape, either in the branch of private – civil law – or public – criminal law. This study made an incursion in the matter of the maintenance obligation when the beneficiary is a child, in case of separation of their parents or divorce. The date from which the maintenance obligation is established, its amount, the beneficiaries, debtors, execution modality and sanction in case of non execution are just some of the elements analysed from a theoretical and practical, notarial and judicial perspective. At the same time, the possible criminal implications caused by the non fulfilment of the civil obligation, along with some aspects regarding the crime of family abandonment, are presented in this study.

Considerations regarding the valid conclusion of legal acts by one or both spouses in the light of different matrimonial regimes

Consideraţii asupra încheierii valabile a unor acte juridice de către unul sau de către ambii soţi în lumina diferitelor regimuri matrimoniale

Author(s): Alexandru-Victor Doroş / Language(s): Romanian / Issue: 2/2021

Keywords: legal community; separation of goods; bilateral sales promise; barter contract; land division act; act of unification; family home;

This article briefly examines some of the most important legal acts encountered in practice from the perspective of the issue regarding the need for the participation of both spouses for a valid conclusion. Beyond identifying the hypotheses that give rise to the above mentioned issue, the study explains the basis hereof and seeks to provide appropriate solutions, indicating the incident legal provisions on which their logical legal reasoning is based.

It was willingly and unforced by anyone, but I was wrong. About guilt divorce and divorce guilt. Part I

A fost de bunăvoie şi nesilit de nimeni, dar m-am înşelat. Despre divorţul din culpă şi culpa din divorţ. Partea I

Author(s): Ioan Ilieş Neamţ / Language(s): Romanian / Issue: 2/2021

Keywords: divorce; fault; marriage; obligations; conditions;

In the present paper, divided into two parts, we set out to make a brief foray into the fascinating and complex issue of fault based divorce, aiming to bring some clarifications to the concept, especially from the perspective of the logical legal syllogism it implies and the particularities that characterize it. Thus, in the first part, after a brief review of some general aspects related to the institution of marriage and the ways of its dissolution, including the forms of divorce, our attention focused on the divorce based on fault, where we have tried to underline the conditions that need to be met in order to terminate marriage on this basis and to set some necessary delimitations. Subsequently, some particularities of the judicial claim and the counterclaim were analyzed, with emphasis on the impact that the condition of fault has on them. The second part of the paper deals exclusively with the issue of fault and tries to identify the hypotheses in which fault can be retained, to draw some delimitations of the concept of fault in divorce and to make small distinctions between exclusive and common fault.

It was willingly and unsolicited by anyone, but I was wrong. On divorce and fault in divorce. Part II

A fost de bunăvoie şi nesilit de nimeni, dar m-am înşelat. Despre divorţul din culpă şi culpa din divorţ. Partea a II-a

Author(s): Ioan Ilieş Neamţ / Language(s): Romanian / Issue: 1/2022

Keywords: divorce; fault; marriage; obligations; common fault; exclusive fault;

This paper is a continuation of part I, published in the Family Law Review no. 2/2021. The present part focuses on the idea of fault for divorce and analyses the deeds that may represent solid grounds for divorce by considering the patrimonial and non-patrimonial obligations of the spouses. Also, we have tried to clarify the notion of fault and the distinctions between exclusive fault and common fault.

The childʼs right to know his origins – the right to identity. An absolute right? A perspective on adoption, assisted human reproduction (AHR) and surrogacy

Dreptul copilului de a-şi cunoaşte originile – drept la identitate. Un drept absolut? Privire asupra adopţiei, RUAM şi maternităţii de substituţie

Author(s): Carmen Oana Mihăilă / Language(s): Romanian / Issue: 2/2022

Keywords: childrenʼs rights; identity; right to know origins; CRC; ECHR; adoption; surrogate mother; donor;

“Mater semper certa est” – the rule of Roman law no longer has such an absolute character, losing its status of praesumptio iuris et de iure, at least in our times, as long as in the world a mother can remain unknown (consecrated are the cases of France, Germany or Hungary) or a donor (of sperm and oocytes) can claim anonymity. The right to know oneʼs origins, whether adopted children or those born as a result of medical procedures – RUAM or surrogacy, is not uniformly regulated, sometimes even revealing real divergences. The childʼs interest in the adultʼs right to privacy is another issue treated and interpreted differently. A personʼs right to know their origins is a reasonable concept, reinforced by international human rights law. Although Articles 7 and 8 of the Convention on the Rights of the Child do not expressly regulate the right to know oneʼs origins, the provisions contained in these texts, in conjunction with the provisions of Article 8 of the European Convention on Human Rights, through an extensive interpretation of the right to privacy, give us an image of a childʼs right to know information about his or her origins, about the persons who contributed to his or her birth. The childʼs right to identity cannot be considered absolute, but must be balanced against the rights of others. The present study proposes an analysis of both the legal aspects related to the fundamental right to identity, i.e. the childʼs right to know his or her origins, and the psychological nuances, implications and long-term effects of disregarding these rights. Identity, the “need to be”, the “need to become” is, as stated in the literature, both a static and dynamic concept. Knowing oneʼs origins and building an identity can heal wounds, but not having access to this information can create a significant emotional imbalance.

SOME CONSIDERATIONS IN RELATION TO THE CRIME OF NON-COMPLIANCE WITH THE MEASURES REGARDING THE CUSTODY OF THE MINOR, PROVIDED BY ART. 379 CRIMINAL CODE

SOME CONSIDERATIONS IN RELATION TO THE CRIME OF NON-COMPLIANCE WITH THE MEASURES REGARDING THE CUSTODY OF THE MINOR, PROVIDED BY ART. 379 CRIMINAL CODE

Author(s): Remus Ionescu / Language(s): English / Issue: XVI/2022

Keywords: minor; parent; criminal offence; premise situation; non-compliance with the measures regarding the custody of the minor; lack of liberty; objective typicality; subjective typicality;

The father's action to extract his minor son from an environment unsuitable for harmonious physical and mental development, from the domicile provisionally established by the court to the mother, does not meet the objective and subjective typicality of the crime of non-compliance with the measures regarding the custody of the minor, provided by Art. 379 C. pen.

THE DIVORCE PROCEDURE IN THE REGULATION OF THE NEW CIVIL CODE AND THE CIVIL PROCEDURE CODE

THE DIVORCE PROCEDURE IN THE REGULATION OF THE NEW CIVIL CODE AND THE CIVIL PROCEDURE CODE

Author(s): Ioan Micle / Language(s): English / Issue: 16/2019

Keywords: marriage; divorce; participants; spouses; families;

Divorce is a legal means of breaking marriage that will have effects in the future. By divorce it is understood that marriage is rendered in spouses during the life of the spouses by court order for grave reasons attributable to both spouses or only the spouse who make it impossible to continue the marriage for the husband requesting her dissolution2 According to the provisions of civil law, marriage is terminated by the death of one of the spouses or by the judicial declaration of the death of one of the spouses. The court may divorce marriage if, for good reasons, the relations between the spouses are seriously injured and the continuation of marriage is no longer possible. By judicial excellence, divorce, whether pronounced on the initiative of one of the spouses or on the consent of both spouses, extinguishes, on the date of the irrevocable stay of the court ruling, the main effects of the legal act of marriage in spouses' relations, personal.3 Divorce is different from:4 - the termination of marriage (the death or judicial declaration of the husband's death); -finance of marriage (invalidity of marriage); - the actual separation (the actual separation of the spouses), when they remain married but have suspended the obligation of cohabitation; - body separation (an institution governed only by those systems of law that do not accept divorce or accept it under restrictive conditions such as Spain, Great Britain, France, Italy, called divorce anticameral or divorce of Catholics), consisting of the suspension by the court, at the request of one or both spouses, the obligation of cohabitation, the sharing of common goods, and the entrustment of minors to raising and education, the marriage remaining valid. Therefore, for divorce marriage dissolution it is necessary to cumulate the following conditions: - the existence of sound reasons that the court is competent to carefully analyze; - the impossibility of continuing marriage; - the serious deterioration of marriage relationships as a consequence of sound reasons.

It would be simple if it weren't complicated: judicial divorce by agreement

Ar fi simplu, dacă nu ar fi complicat: divorţul judiciar prin acord

Author(s): Ioan Ilieş Neamţ / Language(s): Romanian / Issue: 01/2023

Keywords: divorce; spousal consent; conditions; procedure; accessory claims;

In this paper, we have analysed the legal regime of the divorce by spousal consent, with a special focus on the procedural dimension. Thus, in the first part of the paper, our attention was focused on the substantial conditions provide by the law in order to dissolute the marriage based on spousal consent, underlying the characteristics of the expressed will and the forms the will may take. Among others, we have explained why, from our point of view, the final thesis provide by art. 373 a) of the Civil Code refers to the situation in which one of the spouses claims right from the beginning to divorce based on spousal consent, even though such a consent has not yet been reached at the time when the divorce application was registered. Also, considering the irrelevance of fault in this form of divorce, we have shown the specific consequences of spousal consent divorce on possible accessory claims. In the second part of the paper, we have analysed the procedural regime of mutual agreement divorce, pointing out the formal conditions of the divorce application, presenting how the procedure goes on depending on the possible hypothesis and underlining the incongruences between the Civil Code and the Civil Procedure Code. Among these incongruences one refers to the lack of a procedural regulation of the second thesis of Article 373 a) of the Civil Code regarding the divorce application made based on consent made by one of the spouses and accepted by the other. Subsequent, we have analysed the possible solutions for dissolution of marriage by spousal consent when the court was initially invested with another form of divorce, but also two uncommon forms of spousal consent divorce: the hypothesis in which the marriage is dissolute on the basis of spousal consent though the court was initially invested with a divorce application grounded on long term separation and the one provided by Article 932 of Civil Procedure Code. Regarding the last hypothesis we have argued why it cannot be qualified as a spousal consent divorce, but rather a sui generis form of divorce which is more proximate to the divorce based on fault.