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Last update: 21-09-2007
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Maintenance claims - Romania

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TABLE OF CONTENTS

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Romania? 1.
2. Up to what age can a child benefit from a maintenance allowance? 2.
3. In which cases is the law of Romania applicable? 3.
4. If this law is not applicable, which law will the courts of Romania apply? 4.
5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance? 5.
5.A. How do I apply for maintenance from this organisation or government department (central or local), and what procedures apply? 5.A.
6. Can a request be made on behalf of a relative, a close relation, or a child under age? 6.
7. If the applicant plans to bring the case to court, how does he/she knows which court has jurisdiction? 7.
8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures? 8.
9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure? 9.
10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of the changes in the costs of living or family circumstances? 10.
11. How and to whom will the maintenance be paid? 11.
12. If the maintenance debtor doesn’t pay voluntarily, what action can be taken in order to force him/her to pay? 12.
13. Is there an organisation or government department (central or local) which can help me to recover maintenance? 13.
14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? 14.
15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in Romania? 15.
16. If so, how can that organisation or government department (central or local) be contacted? 16.
17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? 17.
18. Can the petitioner address directly a request to an organisation or government department (central or local) in Romania? 18.
19. If so, how can that organisation or government department (central or local) be contacted? 19.
20. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? 20.

 

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Romania?

Which persons have to pay a «maintenance allowance» to another person:

  • parents to their children?
  • children to their parents?
  • a divorced spouse to the other spouse?
  • other?

In which cases?

The legal obligation of maintenance is the legal requirement on a person to afford another person the necessary means of subsistence, including those required for the satisfaction of his/her spiritual needs and where a parent has an obligation to maintain children below the age of majority, the means required for their upbringing, education and vocational training. The maintenance obligation exists between spouses, parents and children, adopters and adoptees, grandparents and grandchildren, great-grandparents and great-grandchildren, brothers and sisters, as well as between other persons specifically defined by law. The order in which the persons are obliged to pay maintenance is as follows:

  • parents for children below the age of majority (via legal representative);
  • spouses;
  • former spouses;
  • a spouse having contributed to the maintenance of a child of the other spouse;
  • a child being brought up by a person other than its parents without completion of the necessary adoption formalities;
  • the heir of a person who had been under the obligation to maintain a minor or who, without having any legal obligation, has provided maintenance for that minor.

2. Up to what age can a child benefit from a maintenance allowance?

A child benefits from a maintenance allowance up to the age of majority, while a child having reached the age of majority and whose education is still in progress is entitled to receive a maintenance allowance from his/her parents until he or she reaches the age of 25 or (where he/she is attending a course of advanced education of more than 5 years' duration) the age of 26. The law provides that the right to a maintenance allowance of a child having reached the age of majority and still attending a course of education has to be confirmed by court decision, while the parental obligation to maintain a child having reached the age of majority ends on completion of the child's education or vocational training and, at the latest, when the child reaches the age of 25.

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3. In which cases is the law of Romania applicable?

In the case of a maintenance obligation between parents and children, children of the marriage are subject to Romanian law if the marriage is governed by Romanian law, respectively if:

  • the parents are Romanian citizens;
  • the parents have different citizenships but have joint domicile in Romania;
  • the parents have different citizenships and different domiciles but have or have had joint residence in Romania or maintain their closest links with Romania;
  • (if the parents' marriage has ended/been dissolved before the birth of the child) Romanian law governs the effects of the marriage at the time when it is dissolved/ends.

Children from outside the marriage who at the time of their birth had Romanian citizenship are subject to Romanian law.

In the case of a maintenance obligation between adopter and adoptee, Romanian law applies if the adopter is a Romanian citizen. Where a spouse adopts the child of the other spouse, Romanian law applies if:

  • both parties are Romanian citizens,
  • both parties have different citizenships but a joint domicile in Romania,
  • both parties have different citizenships and domiciles but have or have had a joint residence in Romania or maintain their closest links with Romania.

In the case of a maintenance obligation between spouses, Romanian law applies if:

  • both spouses are Romanian citizens,
  • the spouses have different citizenships but a joint domicile in Romania,
  • the two parties have different citizenships and domiciles but have or have had a joint residence in Romania or maintain their closest links with Romania.

In the case of a maintenance obligation between former spouses, Romanian law applies if:

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  • both spouses are Romanian citizens,
  • the spouses have different citizenships but a joint domicile in Romania,
  • the two parties have different citizenships and domiciles but have or have had a joint residence in Romania or maintain their closest links with Romania,
  • the foreign law does not permit divorce or permits it only on stringent conditions and one of the spouses is a citizen of Romania at the time an application is made for divorce.

In the case of a maintenance obligation between grandparents and grandchildren, great-grandparents and great-grandchildren, brothers and sisters etc., here referred to as creditors and debtors, Romanian law applies if:

  • the creditor is a Romanian citizen,
  • (only for subsequent contributions) if the creditor has been a foreign citizen and has exchanged his foreign citizenship for Romanian citizenship.

The dispute between the parties will be heard by the court designated by agreement between the parties as will any other dispute arising between them concerning that agreement.

4. If this law is not applicable, which law will the courts of Romania apply?

If both the person applying for maintenance and the debtor are in Romania:

  1. If Romanian law is not applied, the Romanian court may apply the foreign law. [However, the foreign law is always applied because Romanian law (lex fori) so provides.] The Romanian courts have the default obligation to determine the law applicable in the case of disputes arising from legal relationships with a foreign entity because, in certain limited cases, it is foreign law which applies. Accordingly, given the mandatory nature of the conflict rule, the courts have the default obligation to determine the foreign law applicable. At the same time, the interested party may request that the law it considers applicable be applied, although the writ of summons must state the factual and legal grounds on which the request is based. If the interested party does not request application of the applicable law, which we presume to be the foreign law, the court then decides by default to apply this law. In solving the general problems, the judicial authorities which apply the foreign law will be guided by their own rules (lex fori).
  2. If both the person claiming a maintenance allowance and the debtor are in Romania (in the sense that they have or have had a joint domicile/residence in Romania or maintain their closest links with Romania), Romanian law will always apply except in the following cases:
    • a parent-child maintenance obligation in respect of a child from outside the marriage will be subject to the foreign law if at the time of his/her birth the child  held foreign citizenship;
    • a maintenance obligation between adopter and adoptee if the adopter holds foreign citizenship;
    • a maintenance obligation between grandparents and grandchildren, great-grandparents and great-grandchildren, brothers and sisters etc., here referred to as creditors and debtors if the creditor is a foreign citizen or, for the purposes of subsequent contributions, has been Romanian but has changed citizenship.

5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance?

5.A. How do I apply for maintenance from this organisation or government department (central or local), and what procedures apply?

The claimant must address his/her claim to the court having jurisdiction for the place of domicile of the defendant/debtor. The writ of summons in respect of the maintenance allowance may be filed separately or in conjunction with divorce suits, paternity suits, custody suits for upbringing and education, or to establish the place of domicile, of children below the age of majority. In the context of divorce proceedings, an application will generally be made by means of either a writ of summons or a counterclaim for settlement of various accessory demands such as the determination of each parent's contribution to the cost of the child's upbringing, education and vocational training. At the request of the interested spouse, the authority will also settle the matter of the maintenance allowance. For the duration of the divorce proceedings, the authority may, by means of an injunction, impose temporary measures regarding custody of children below the age of majority, the maintenance obligation, the child allowance and use of the place of abode. The measures taken apply only until such time as the basic dissolution proceedings are complete.

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The proceedings at first instance comprise various stages. The written stage involves the lodging of the writ of summons, challenge or counterclaim; precautionary measures may be taken such as sequestration or distraint; the parties are cited and the procedural documents communicated to them. The oral stage comprises  the court hearing, during which procedural exceptions may be raised and evidence submitted. This is followed by the deliberations stage, after which the court hands down its decision.

6. Can a request be made on behalf of a relative, a close relation, or a child under age?

Where application is made for a maintenance allowance in conjunction with divorce proceedings, the divorce application is presented personally by the applicant to the chairman of the bench. Where the divorce application is based on the agreement of the parties, it will be signed by both spouses, but it can be presented to the chairman of the bench in person by only one of the spouses. Where a separate application is made for determination, increase or reduction of the maintenance allowance, this may be lodged by the minor's legal guardian (the parent awarded custody of the minor). An application in respect of a child having reached the age of majority is lodged by that child in person.

7. If the applicant plans to bring the case to court, how does he/she knows which court has jurisdiction?

The court which has territorial jurisdiction can be determined by reference to the Romanian judicial atlas, which is published on the webpage of the Ministry of Justice.

8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures?

No.

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9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure?

No. Maintenance applications are exempt from stamp duty.

Yes. Legal aid to cover the costs of the procedure (lawyer's fees) is available subject to the conditions laid down by law (Civil Code).

10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of the changes in the costs of living or family circumstances?

Under Art. 94 of the Family Code:

Art. 94 Maintenance is granted according to the needs of the applicant and the means of the person who is to pay it.

The court may increase or reduce the maintenance obligation or decide to terminate it in line with changes in the means of the person providing maintenance or the needs of the person receiving it.

Where the maintenance is paid by a parent or adopter, it is set at up to a quarter of earnings for one child, a third for two children and a half for three or more children.

Yes. An application can be made to the courts for an increase in the amount of the maintenance paid by the debtor in the light of changes in maintenance costs and certain family circumstances.

11. How and to whom will the maintenance be paid?

Under Article 93 of the Family Code:

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Art. 93. – The maintenance shall be paid in kind or in the form of a cash allowance.

The court shall decide the manner and means of execution in the light of the particular circumstances.

As regards persons entitled see reply to Question No 1.

12. If the maintenance debtor doesn’t pay voluntarily, what action can be taken in order to force him/her to pay?

One means of forcing the debtor to pay is that of distraint.

Postal charges, bank charges and charges arising in connection with other methods of transfer are borne by the debtor by way of assimilation to the costs of forced execution.

13. Is there an organisation or government department (central or local) which can help me to recover maintenance?

No.

14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place?

If the petitioner is in Romania and the maintenance recipient has his/her residence in another country:

No.

15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in Romania?

If the petitioner is not domiciled in Romania but in another of the States party to the New York Convention of 1956, he/she can address his concerns to the Bucharest Bar Association.

If the petitioner is not domiciled in Romania or in any of the States party to the New York Convention of 1956 but in one of the states with which Romania has concluded an international judicial assistance agreement containing provisions relating to the recognition and enforcement of judgments in civil and commercial matters (e.g.: Albania, North Korea, Egypt, Macedonia, Moldova, Mongolia, Russia, Serbia and Syria), other than the Member States of the European Union, then the foreign application for recognition and enforcement can be sent to the Romanian court at the defendant's place of domicile.

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16. If so, how can that organisation or government department (central or local) be contacted?

Bucharest Bar Association, str. Dr. Râureanu nr. 3, Sector 5, Bucureşti, 050047.

Romanian Ministry of Justice, str. Apolodor nr. 17, Sector 5, Bucureşti, cod 050741.

17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)?

If the petitioner is in another country and the maintenance debtor is in Romania:

Under Articles 2 and 6 of the New York Convention of 1956 on the recovery abroad of maintenance, the Bucharest Bar Association has been designated the intermediary authority for the settlement of applications for maintenance allowances where the debtor is in Romania and the petitioner is in another State party to the Convention.

18. Can the petitioner address directly a request to an organisation or government department (central or local) in Romania?

The petitioner must address his/her claim either to the central transmitting authority of the state or designated on the basis of the New York Convention on the Recovery Abroad of Maintenance, or directly, i.e. either in person or via his/her legal representative.

19. If so, how can that organisation or government department (central or local) be contacted?

See reply to Question No 18.

20. What kind of assistance can the petitioner receive from this organisation or government department (central or local)?

See reply to Question No 18.

Further information

Ministerul Justiţiei, www.just.ro română, Cooperare judiciară internaţională.

Baroul Bucureşti, http://www.baroul-bucuresti.ro/index_ro.asp română.

« Maintenance claims - General information | Romania - General information »

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Last update: 21-09-2007

 
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