Matrimonial Regimes in Romania: Legal Explanations, Effects, and What You Need to Know
If you are married, are all assets shared? If you are married, can you change the matrimonial regime? If you were married and divorced, what happens to the former spouses' assets?
Marriage is an important step in anyone's life, and before taking this step, it would be good to have answers to the above questions. But before that...
What Is Marriage From A Legal Perspective?
From a legal perspective, marriage is a legal act that produces effects – a set of rules and norms that apply to spouses by virtue of the law. Marriage organizes social relations between people regarding the rights and obligations they have towards each other, the organization of the patrimony, the rights and obligations they have towards children resulting from the marriage, succession rights, etc.
As noted in the specialized literature: "In a legal sense, the family designates a group of persons between whom there are rights and obligations arising from marriage, kinship, and other relations assimilated to family relationships" (I.P. Filipescu, A.I. Filipescu, Family Law Treatise, 8th revised and completed edition, Universul Juridic Publishing House, Bucharest, 2006, p. 12). Thus, marriage is not just a romantic decision but an atypical form of "contract" regulated by the Civil Code. The conclusion of marriage also marks the moment from which the legal regime of marriage becomes applicable to the spouses regarding various aspects of their lives, a situation that lasts throughout its existence.
As of the writing of this article, the Romanian Civil Code defines marriage as "the freely consented union between a man and a woman, concluded under the conditions of the law," with the aim of establishing a family. However, state authorities are obliged to respect the right of residence on Romanian territory, under the conditions stipulated by European law, for spouses who are citizens of EU member states and/or third countries, from same-sex marriages contracted in a member state of the European Union.
Marriage is a secular institution, meaning that public authorities of the state (civil status officers) have the primary role in officiating it and registering it in the appropriate registers. The religious celebration of marriage can only take place after the necessary civil marriage has been officiated.
What is an engagement?
Alongside marriage, engagement is regulated by the current Civil Code. Since October 1, 2011, the new Civil Code explicitly regulates engagement, establishing that engagement is the mutual promise to marry, but it does not define it explicitly and does not provide legal sanctions for breaking this commitment.
What are the consequences if you break an engagement in Romania?
A fiancé who ends the engagement cannot be forced to marry. There can also be no monetary penalties for breaking the engagement (the Civil Code expressly provides that any penalty clause is considered unwritten – read more about breach of contracts).
Are there financial obligations resulting from breaking an engagement?
In the event of breaking the engagement, each fiancé can request the return of gifts given on the occasion of the engagement, if they were made in consideration of the marriage or during the engagement, except for ordinary gifts (the law does not specify what "ordinary gifts" mean). Additionally, there may be obligations to pay damages for breaking the engagement.
A party who abusively breaks the engagement may be obliged to compensate for expenses incurred or contracted for the celebration of the marriage, if these were reasonable under the circumstances, as well as for any other damages caused. The obligation to pay damages for breaking the engagement arises when one party abusively breaks the engagement, not when it is dissolved by the will of both fiancés or by one of them, accepted by the other.
Abuse of rights is a legal concept that becomes relevant when a person exercises their legal rights in a way that exceeds reasonable limits and causes harm to others. Practically, the person in question has the respective right, but exercises it for purposes other than those for which the right was provided by law. Essentially, although a person has a certain right, using it in an unjustified, excessive, or malicious manner can be considered an abuse of rights.
In the context of breaking an engagement, abuse of rights can occur if one of the fiancés decides to break the engagement in a way that is intentionally harmful or unjustified towards the other fiancé. For example:
Breaking the engagement in bad faith: if one of the fiancés suddenly breaks the engagement without a serious reason, just to cause suffering to the other fiancé, this behavior could be considered an abuse of rights.
False promises: if a fiancé makes promises of marriage knowing they never intend to fulfill them and uses this promise to obtain material or emotional advantages from the other fiancé, this can be considered an abuse of rights.
Breaking the engagement at a critical moment: for example, if a fiancé breaks the engagement a few days before the wedding, knowing that this will cause significant financial and emotional harm to the other fiancé, this act could be interpreted as an abuse of rights.
In cases like those mentioned above, the affected person can seek compensation for the financial damage caused by breaking the engagement through litigation. The related lawsuit must be filed within 1 year from the breaking of the engagement.
If you want to learn more about the subject, you can talk to a lawyer online.
What conditions should you meet to conclude a valid marriage in Romania?
There is a minimum age threshold for marriage.
Marriage can be freely concluded if the future spouses are at least 18 years old. Minors between 16 and 18 years old can validly marry if they provide justified reasons, hold the appropriate medical approval, have the consent of their parents or, as the case may be, their guardian, and receive authorization from the guardianship court in whose jurisdiction the minor resides. If only one parent exercises parental authority (for example, in the case of divorced parents where one parent has custody), the consent of that parent is sufficient.
You can have one marriage at a time.
In Romania, it is prohibited for a person who is already married to enter into a new marriage. However, the European Court of Human Rights (ECHR) has decided that the protection of family life in the sense of Article 8 of the European Convention extends to families formed otherwise than according to European tradition, provided they are recognized by national law. In such a scenario, although there is no obligation of recognition, the family relationship between a polygamous foreigner and all their children exists substantively and benefits from protection.
Marriage between relatives is prohibited under the law.
The Civil Code prohibits marriage between direct relatives (ascendants, descendants) as well as between collateral relatives up to the fourth degree inclusive. Exceptionally, marriage between collateral relatives of the fourth degree can be authorized. This authorization is given by the guardianship court in whose jurisdiction the person requesting consent resides. The court can authorize the marriage based on a special medical opinion given for this purpose.
The prohibition of marriage between relatives also applies in cases of adoption, both between persons who have become relatives through adoption and between persons whose natural kinship has ceased by the effect of adoption.
Marriage of protected persons follows a restrictive regime.
Marriage is prohibited between a guardian and the person under their care. Starting in 2022, a person under judicial counseling or special guardianship must inform their guardian in writing about their intention to marry. The guardian can oppose the marriage under legal conditions.
Rules for marriage of a person under judicial counseling or special guardianship.
This refers to situations where a person with restricted legal capacity, due to mental or physical issues, wishes to marry. In such cases, the legislation provides specific procedures and conditions to protect the rights and interests of this vulnerable person.
Judicial counseling is a protective measure for an adult who, due to a mental or physical condition, cannot properly manage their personal and patrimonial interests. A person under judicial counseling has restricted legal capacity, meaning they need the consent of their judicial counselor to conclude important legal acts, including marriage.
Special guardianship is a temporary protective measure applied in urgent cases to protect a person unable to express their will due to temporary reasons (such as a severe illness or accident). A person under special guardianship may have restricted legal capacity similar to one under judicial counseling.
In these cases, the marriage procedure involves meeting special requirements, such as:
consent of the judicial counselor or special guardian: the person wishing to marry must obtain the consent of their judicial counselor or special guardian to ensure the decision to marry is in their best interest.
court approval: in some cases, court approval may be necessary. The court will assess whether the marriage is in the person's best interest and whether they understand the implications of marriage, considering medical and psychological evaluations.
protection of vulnerable persons' interests: the legislation aims to protect vulnerable persons and ensure they are not subject to exploitation or abuse. These special measures guarantee that major decisions, such as marriage, are made responsibly and in the protected person's best interest.
Mandatory health disclosure between spouses.
According to the law, future spouses must disclose their health status to each other. This requirement has a dual purpose: medical (preventing the marriage of persons suffering from certain diseases) and practical (each spouse being aware of the other's health condition to freely decide on the marriage).
Intentional omission by a spouse to inform the other about their medical condition can be a ground for annulment of the marriage. In the case of minor, common, and treatable conditions that do not affect the life, health of the spouse, or the purpose of the marriage, the omission of communication should not be significant.
Can a marriage be annulled?
Like any other legal act (contract), a marriage can be declared null as a contract if the rules provided by law for its valid conclusion are violated at the time of its conclusion – rules of form or substance.
Reasons of public interest (absolute nullity)
A marriage can be annulled for reasons of absolute nullity in the following cases:
bigamy: if one of the spouses is already married at the time of the new marriage.
prohibition to marry: if one of the spouses is under judicial interdiction.
kinship ties: if the spouses are direct or collateral relatives up to the fourth degree inclusive.
lack of consent: if there was no free and expressed consent of both spouses at the time of marriage.
fictitious marriage: if the marriage was concluded with the purpose of obtaining a material advantage or other benefits, without the intention of living as husband and wife.
Reasons of private interest (relative nullity)
A marriage can be annulled for reasons of relative nullity in the following cases:
infringement of minimum age: if one of the spouses was under the legal minimum age for marriage (18 years), except in cases where a judicial exemption was obtained.
vitiated consent: if consent was obtained through error, fraud, or violence.
physical impossibility: if, at the time of marriage, one of the spouses was physically unable to consummate the marriage.
About the annulment procedure of a marriage in Romania.
To annul a marriage, the interested spouse must file a lawsuit with the competent court. The court will examine the invoked reasons and decide if there are sufficient grounds for annulment. If the court finds the reasons justified, it will pronounce a judgment of annulment.
Effects of a marriage annulment.
In the case of annulment, the marriage is considered null from its inception, as if it never existed. However, the rights and obligations acquired during the marriage can be protected in certain cases, especially if one of the spouses acted in good faith. Additionally, children born from such a marriage are considered legitimate, and the court can decide on the exercise of parental authority and the establishment of maintenance obligations considering the best interests of the children.
What is a matrimonial regime?
Matrimonial regimes regulate how assets and debts are managed between spouses during the marriage and after its possible dissolution. In other words, a matrimonial regime is a set of legal norms that govern, during the marriage, the relationships between spouses regarding their assets and debts, as well as the relationships between spouses and third parties.
This article will explore in detail the different types of matrimonial regimes available in Romania, the advantages and disadvantages of each, and answers to frequently asked questions to help you make the best decision for your specific situation.
Types of matrimonial regimes in Romania.
In Romania, the Civil Code provides three main types of matrimonial regimes: community of property, separation of property, and conventional community. Each matrimonial regime has its particularities, establishing different rules for managing assets acquired by spouses during the marriage.
Common property matrimonial regime.
The community of property regime is the most well-known matrimonial regime. It is the standard matrimonial regime, applicable in the absence of a marital contract between spouses that decides on another matrimonial regime. Under this matrimonial regime, all assets acquired by spouses during the marriage become, as a rule, joint property of both spouses, with the exception of personal assets, which remain the exclusive property of the spouse who acquired them. Personal assets include those acquired before the marriage, inheritances, gifts, and assets intended exclusively for personal use.
Advantages of the common property matrimonial regime are:
simplifies the management of joint assets and debts.
creates a sense of partnership and sharing of resources.
takes into account unpaid work done by spouses in managing household chores and raising children.
Disadvantages of the the common property matrimonial regime are:
in case of divorce and division of joint assets, tensions can lead to lengthy and uncomfortable litigation (tips on how litigation in Romania develops).
debts contracted by one spouse can affect the entire family (tips on why you should hire a litigation lawyer).
Separation of property matrimonial regime.
Under the separation of property matrimonial regime, each spouse retains individual ownership of assets acquired before and during the marriage. Each spouse is responsible only for their debts.
Advantages of the separation of property matrimonial regime are:
protects the personal assets of each spouse in case of divorce.
reduces the risk of debts of one spouse affecting the entire family.
Disadvantages of the Separation of Property Regime:
can create a sense of separation and lack of partnership.
requires more detailed management of personal finances.
often neglects the unpaid contribution of one spouse to the family's well-being.
Conventional community matrimonial regime.
The conventional community matrimonial regime allows spouses to establish, through a marital contract, specific rules for managing joint and personal assets and allocating property rights over them. This matrimonial regime offers flexibility and can include combined elements from both previous matrimonial regimes.
Advantages of the conventional community matrimonial regime are:
flexibility in managing assets and property rights, allowing spouses to set their own rules during the marriage.
enables spouses to make decisions tailored to their specific needs and desires.
Disadvantages of the conventional community matrimonial regime are:
Requires the drafting and negotiation of a detailed marital contract.
May incur additional costs for specialized legal assistance.
Changing the matrimonial regime during a marriage.
Spouses can change the matrimonial regime during the marriage by concluding a new marital contract. This contract must also be notarized and registered with the National Notarial Register of Matrimonial Regimes.
Prenuptial Agreements.
A prenuptial agreement is a legal agreement concluded between future spouses before marriage, in which they establish the desired matrimonial regime. The prenuptial agreement must be notarized and registered with the National Notarial Register of Matrimonial Regimes.
Essential elements of a prenuptial agreement are:
identification of the involved parties.
details about the chosen matrimonial regime.
specific clauses regarding the management of assets and debts.
date and signatures of the parties and the notary.
Check professional legal templates.
Frequently asked questions about matrimonial regimes
What happens to the joint assets acquired by spouses during the marriage in case of divorce?
In case of divorce, the joint assets of the former spouses, acquired during the marriage, are divided according to the chosen matrimonial regime. Read about getting a divorce in Romania.
In the case of the common property matrimonial regime, joint assets are divided based on each spouse's contribution to their acquisition.
What is the regime for debts accumulated before marriage by one of the spouses?
Under the common property matrimonial regime, debts accumulated before marriage remain the individual responsibility of each spouse. In the separation of property matrimonial regime, each spouse is responsible only for their debts, regardless of when they were accumulated. In the conventional community matrimonial regime, spouses establish their own rules, but generally, debts contracted before marriage remain the responsibility of the debtor spouse.
Can a matrimonial regime be changed during the marriage?
Yes, spouses can change the matrimonial regime during the marriage by concluding a new marital contract, notarized by a public notary.
What assets are considered personal within the community of property matrimonial regime?
Personal assets in the community of property matrimonial regime include assets acquired before marriage, inheritances, gifts, and assets intended exclusively for personal use (such as clothing).
What happens in case of division of assets with those acquired during the marriage through individual work?
In the common property matrimonial regime, assets acquired through individual work during the marriage become joint assets. In the separation of property matrimonial regime, these assets remain the individual property of the spouse who acquired them.
What advantages does a prenuptial agreement offer?
A prenuptial agreement allows spouses to establish their own rules regarding the management of assets and debts, tailored to their relationship. A prenuptial agreement can be useful in preventing disputes in case of divorce regarding the division of assets acquired during the marriage.
Is it mandatory to conclude a prenuptial agreement?
No, concluding a prenuptial agreement is not mandatory; it is a personal choice of each couple. In the absence of a prenuptial agreement, the matrimonial regime of the common property over assets will apply.
What happens if a spouses do not agree on the matrimonial regime?
As future spouses, it is important to discuss and reach an agreement on the chosen matrimonial regime before the marriage is officiated. If you cannot reach an agreement, the common property matrimonial regime, which is the standard regime, will apply.
How is the family home divided in case of divorce and division of assets?
Under the common property matrimonial regime, the home acquired during the marriage is considered joint property and will be divided according to the spouses' agreement or court decision, considering each spouse's contribution to the acquisition of joint assets. In the separation of property matrimonial regime, the home remains the property of the spouse who acquired it. In the conventional community matrimonial regime, spouses establish their own rules applicable to the home.
Can special clauses be included in the marital contract?
Yes, the marital contract can include special clauses tailored to the needs and desires of the spouses, provided they comply with the law.
What happens if one of the spouses passes away?
In case of the death of a spouse, joint assets are divided according to the chosen matrimonial regime. Legal or testamentary heirs will receive their share of the joint and personal assets of the deceased spouse.
How does the matrimonial regime affect a spouse’s business?
Under the common property matrimonial regime, businesses initiated during the marriage are considered joint assets. In the separation of property matrimonial regime, businesses remain the individual property of the spouse who developed them.
What happens to joint debts in case of divorce?
In the community of property matrimonial regime, joint debts are equally divided between spouses. In the separation of property matrimonial regime, each spouse is responsible only for their debts.
What happens if one spouse refuses to sign the marital contract?
In the absence of a mutual agreement, a valid marital contract cannot be concluded. In this case, if the spouses decide to officiate the marriage, the community of property matrimonial regime will apply.
How can I find out more about matrimonial regimes and related legislation?
For detailed information, it is recommended to consult a lawyer specializing in family law. You can also find useful information on our legal blog.
Conclusions
Choosing the right matrimonial regime is an important decision that can significantly impact the couple's life and the management of assets and debts acquired by spouses during the marriage. Whether you opt for the community of property matrimonial regime, the separation of property matrimonial regime, or the conventional community matrimonial regime, it is essential to discuss openly with your partner and consult a lawyer to ensure you make the best decision for your specific situation.
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