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Last update: 21-09-2007
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Divorce - Romania

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TABLE OF CONTENTS

1. What are the conditions for obtaining a divorce? 1.
2. What are the grounds for divorce? 2.
3. What are the legal consequences of a divorce as regards: 3.
a) the personal relations between the spouses (e.g. family names)? a)
b) the division of property of the spouses? b)
c) the minor children of the spouses (e.g. parental responsibility and maintenance rights)? (See Parental Responsibility – [Romania] theme) c)
d) the obligation to pay maintenance to the other spouse? (See establishment of maintenance rights – [Romania]d)
4. What does the legal term “legal separation” mean in practical terms? 4.
5. What are the conditions for legal separation? 5.
6. What are the legal consequences of legal separation? 6.
7. What does the term “marriage annulment” mean in practice? 7.
8. What are the conditions for marriage annulment? 8.
9. What are the legal consequences of marriage annulment? 9.
10. Are there alternative non judicial means for solving issues relating to divorce without going to court? 10.
11. Where should I lodge my application (petition) for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment? 13.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in one European Union country recognised by another Member State? 14.
15. To which court should I turn to oppose a decision on divorce/legal separation/marriage annulment issued by a court in one European Union country being recognised by another Member State? Which procedure applies in these cases? 15.
16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in Romania or who are of different nationality? 16.

 

1. What are the conditions for obtaining a divorce?

(e.g. the possibility of divorce by mutual consent, application for separation, etc.)

Divorce can be obtained by mutual consent of the spouses if they have been married for at least one year at the date of the application and if there are no children resulting from the marriage.

In the absence of mutual consent, divorce can be obtained at the request of one of the spouses in the following cases:

  • the court considers that there are serious grounds for divorce;
  • there are serious grounds for the deterioration of the relationship between the spouses;
  • continuation of the marriage is no longer possible for the spouse applying for a divorce.

2. What are the grounds for divorce?

(e.g. irretrievable breakdown of the marriage, fault, separation)

In case law, the following have been deemed to be grounds for divorce:

  • unjustified refusal by one of the spouses to live with the other or unjustified desertion of the conjugal home (de facto separation imputable to defendant spouse);
  • infidelity of one of the spouses;
  • bad behaviour (moral or physical);
  • existence of a serious incurable disease from which one of the spouses is suffering and of which the other spouse was unaware prior to the marriage, if it is established that the symptoms of the disease subsequently become worse and are of a nature to justify the refusal of the claimant spouse to continue living with the defendant spouse since the continuation of the marriage has become impossible.

3. What are the legal consequences of a divorce as regards:

a) the personal relations between the spouses (e.g. family names)?
  • the quality of spouse ceases to exist and both the divorced spouses may remarry;
  • both spouses revert to the names they had prior to the marriage. Exception: the spouses may agree that the spouse who, after the marriage, took the family name of the other spouse may keep this name after the divorce, provided that this is agreed upon during and not after the court decision;
  • the spouses cease to have an obligation of moral support.
b) the division of property of the spouses?

Joint property can be divided either by mutual agreement of the spouses or by a court decision.

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The agreement between the spouses may be drawn up:

  • at the time the divorce decree is issued;
  • during the divorce proceedings, either before the court or in an authentic instrument;
  • in the period immediately after the final divorce decree;
  • once the divorce decree has been registered in the margin of the marriage deed.

If the spouses fail to reach an agreement concerning division of the joint property, an application for division of the property may be lodged after the dissolution of the marriage, through the divorce proceeding, through a principal action, or at any time thereafter (incidental or accessory application). The share of property corresponding to each spouse is determined on the basis of his or her contribution to acquiring and maintaining the joint property. The wife's work in the house and care of the children are taken into account when determining each spouse's contribution to obtaining the joint property. This contribution may be established by any means of proof, since it is a de facto situation.

c) the minor children of the spouses (e.g. parental responsibility and maintenance rights)? (See Parental Responsibility – [Romania] theme)

The court is obliged, even if the spouses have not made any express application regarding custody, to issue a decision concerning the custody of minor children when issuing the divorce decree. The court bases its decision concerning custody of minor children on the interest of the children. Before issuing its decision it must hear the parents, the tutelary authority and children of 10 years and over. An agreement between the parents regarding custody of minor children is not obligatory for the court.

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If the child has been in the custody of one parent, this parent has parental rights and obligations with regard to the child. The other parent maintains the right to have personal contact with the child and to oversee its upbringing and education, including occupational training.

d) the obligation to pay maintenance to the other spouse? (See establishment of maintenance rights – [Romania])

The former spouse is entitled to maintenance if he or she is in financial need owing to incapacity to work arising before or during the marriage, or to incapacity arising within a year of the divorce provided this incapacity is owing to events relating to the divorce.

The former spouse loses the right to maintenance from the other spouse if he or she remarries.

If the divorce decree has found only one of the spouses to be at fault, this spouse is entitled to maintenance from the other spouse for only one year after the divorce, whereas the other spouse is entitled to maintenance for an indefinite period.

4. What does the legal term “legal separation” mean in practical terms?

In Romanian law there is no concept of "legal separation" but rather of "de facto separation".

5. What are the conditions for legal separation?

6. What are the legal consequences of legal separation?

(e.g. can it be converted into divorce, is it a prerequisite for obtaining a divorce?)

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7. What does the term “marriage annulment” mean in practice?

A marriage is annulled owing to breach of one of the legal requirements of the marriage contract. A marriage can only be annulled by a court decision. Annulment has effect with regard to the past as well as the future; the marriage is considered not to have taken place.

8. What are the conditions for marriage annulment?

A marriage can be declared invalid on the grounds of the following breaches of the legal provisions relating to the marriage contract:

  • the marriage was contracted in breach of the provisions concerning the legal age for marriage;
  • the marriage was contracted by a person who was already married;
  • the marriage was contracted between related persons whose degree of relationship forbids them to marry (marriage is forbidden between persons related in the direct line, regardless of the degree of relationship, or in the collateral line up to and including the fourth degree);
  • the marriage was contracted between an adoptive parent, or a relative thereof, and his or her adopted child or a relative thereof;
  • the marriage was contracted by a person who was insane;
  • the marriage was contracted without the consent of the future spouses or such consent was not given in accordance with the legally required procedure (the marriage must be contracted before a civil registrar at the register office in the presence of the future spouses, whose consent must be given personally and publicly);
  • incompetence of the civil register official (the marriage ceremony was performed by an official not authorised to perform it);
  • the marriage was contracted between persons of the same sex;
  • the marriage banns were not published and there were no witnesses to the marriage.

A marriage can also be annulled where consent is invalid on the grounds of error (solely concerning the physical identity of the other spouse), trickery or duress.

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9. What are the legal consequences of marriage annulment?

From a legal standpoint, the spouses are considered never to have been married. Consequently:

  • the spouses revert to the names they had prior to the marriage;
  • the joint property regime is deemed not to have existed, since the annulment of the marriage has retroactive effect. If any property has been obtained between the contracting of marriage and the date of annulment of the marriage, this property is deemed to be the joint property of the two spouses;
  • there can be no maintenance obligation between the spouses;
  • the surviving spouse has no inheritance rights, since the quality of spouse is deemed never to have existed;
  • the dissolution of the marriage does not change the status of the children, who maintain their status as children of the marriage. Thus, although the marriage is dissolved, the filiation of any children born or conceived up to the time of annulment of the marriage is regulated in the same way as for the children of a valid marriage.

10. Are there alternative non judicial means for solving issues relating to divorce without going to court?

(e.g. family mediation)

Mediation – Act No 192/2006 on mediation and organisation of the mediator profession. However, a divorce decree has to be issued by a court.

11. Where should I lodge my application (petition) for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?

In accordance with section 607 of the Romanian Civil Procedure Code, the application for divorce should be lodged with the court with jurisdiction in the place where the last joint home of the spouses is located. If the spouses did not have a joint home or if neither spouse any longer lives in the place where their last joint home was located, the application should be lodged with the court with jurisdiction for the place where the defendant's home is located. However, if the defendant does not have a home in Romania, the application should be lodged with the court with jurisdiction for the place where the claimant's home is located.

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An application for nullity relative or nullity absolute should be lodged with the court with jurisdiction for the defendant's domicile. If the defendant is domiciled abroad or has no known domicile, the application should be lodged with the court with jurisdiction for the defendant's place of residence, or, if the defendant has no known residence, with the court with jurisdiction for the claimant's place of domicile or residence.

The ordinary provisions of the Civil Procedure Code apply.

12. Can I obtain legal aid to cover the costs of the procedure?

Legal aid can be obtained subject to the conditions laid down in sections 74-81 of the Civil Procedure Code. Aid to cover part or all of the costs of the court procedure may be granted at any stage of the procedure.

13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?

Yes. The time period for appeal against a divorce decree is 30 days from notification of the decree.

The time period for appeal against a decree of annulment is 15 days from notification of the decree.

14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in one European Union country recognised by another Member State?

The applicable legislation concerning recognition of a divorce decree is Regulation (EC) No 2201/2003 (Brussels II Regulation).

The application should be lodged with the court with jurisdiction for the defendant's place of domicile or residence in Romania. If the defendant has no known residence, the application should be lodged with the court with jurisdiction for the claimant's place of domicile or residence.

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15. To which court should I turn to oppose a decision on divorce/legal separation/marriage annulment issued by a court in one European Union country being recognised by another Member State? Which procedure applies in these cases?

You should lodge your application with the court immediately above the one that issued the recognition decision. The ordinary provisions of the Civil Procedure Code apply.

16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in Romania or who are of different nationality?

(explain the rules on determining the applicable legislation in each Member State).

To determine the provisions applicable to a private international law relation, Act No 105/1992 on private international law relations should be referred to. In addition, the personal and property relations between the spouses are subject to ordinary national law. If the spouses are of different nationalities, they are subject to the law of their common place of domicile.

Ordinary national law or the law applicable to their common place of domicile continues to apply even if one of the spouses changes nationality or place of domicile.

If the spouses are of different nationalities or have different places of domicile, the personal and property relations between them are subject to the law of the State in which they have or had their common residence or in which they maintain their closest common ties.

If the foreign law in question, determined as specified above, does not permit divorce or permits it subject to different conditions, Romanian law applies if one of the spouses is a Romanian citizen at the date of the application for divorce.

Further information

Useful links:

www.just.ro română

international judicial cooperation

« Divorce - General information | Romania - General information »

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Last update: 21-09-2007

 
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