FAMILY LAW DEVELOPMENTS IN ROMANIA

I.

FAMILY LAW AND THE FAMILY LAW CODE

The totality of juridical norms which regulate family relations for the purpose of preserving the Family , constitute the Family Law Code in Romania. The majority of family law norms lie in the Family Law Code, (Law #4 of January 4, 1954, which came into effect on February 1, 1954). Some family law principles are also to be found in other acts which supplement the Family Law Code, especially bearing in mind that before the above-mentioned code came into force, family relations were governed by the Civil Law Code.

II.

PRINCIPLES OF FAMILY LAW

The main principles of family law are: a. marriage and family protection is carried out by the state through legal, juridical and economic measures; b. maternity and child protection is governed by a collection of juridical norms; c. complete equality between male and female partners in marriage relations exists, as well as in parent/child relations; d. the act of marriage is based upon the free consent of both parties; e. the rights and duties of parents are to be exercised in the welfare of the child ; f. family members owe each other material and moral support; g. marriage relations are to be monogamous.

III.

AMENDMENTS TO THE CIVIL LAW CODE

Amendments brought to the Civil Law Code before the passage of the Family Law Code includes modifications to provisions regulating family relations serving to refine successively the definitions of family law. The outset of this development was the Constitution of April 13, 1948, Article #105 of which stipulated that the laws should be revise in order to conform with its provisions and requiring that any previous law which conflicted with the Constitution be abrogated. As for family law practice, for example, all parts of the Civil Law Code which do not respect equality between men and women were affected. Thus, old laws which discriminated against women in marriage, including economic arrangements, were repealed. Parental authority was also recognized, such as by Decree #130 f April 2, 1949, which abolished the juridical status of illegitimacy in children, by stipulating that both parents had responsibility for the chills, regardless of whether they are married. (the previous civil law had assigned the care of illegitimate children only to the mother, with the father having the right, but not the obligation, of being a parent). The establishment of such a familial relation could be made by making a claim, or by judicial order. In accordance with the above-mentioned decree, the alleged father of an illegitimate child could have been compelled to support the infant, along with its mother, irrespective of any previous finding of paternity. The decree also provided for the legitimation of children whose parents were married after their birth. Decree #185 of April 30, 1949 introduced some changes regarding the duration of parental authority over children. The previous Civil Law Code states that children remained children either until the age 21, or before, if they explicitly became emancipated or married. Under decree #185 children name of age either at 18, or earlier if their married and emancipation was abolished. Concerning adoption, the law was qualitatively improved by Decree #131 of April 2, 1945. Relevant provisions included the following: a. Any adoption order was to be made in the best interest of the child; b. The adoption procedure could only apply to children under eighteen years of age; c. The child was assumed to be able to acquire knowledge of his/her adoption.

Included in Decree #182 of October 15, 1951 was the addition of the legal concept of familial affiliation a form of adoption which allowed for the adopted child to be treated legally as a natural child of the adoptive parents. The Romanian Constitution of September 24, further protected family life by stipulating that it was the states interest to preserve the quality of marriage, family life and the welfare of mothers and children. Decree #32 of January 30, 1954 incorporated these changes into law, super sending earlier family-life provisions in the Civil Law Code and other legislation.

IV.

AMENDMENTS TO THE FAMILY LAW CODE, UP TO DECEMBER 1989

A. Modifications to the Law of Divorce Law #4 of April 4, 1956 modified the then-existing law of divorce and parent-child relations. Decree #475 of December 24, 1977 also improved the law of divorce. This provided that one a divorce petition was submitted, a court would the hear evidence and stipulate a three to six months waiting period as circumstances warranted. Once this waiting period had passed, divorce proceedings would begin. This legislation modified the previous body of law (Civil procedure code established by Decree #680 of November 7, 1969, an amended by Decree #174 of July 30, 1974) concerning divorce proceedings, and provided for the following procedures: d. Legitimate and illegitimate children are to be considered legally equal; e. Marriages are to be recorded by the town registrar; f. Special protection is to be granted to handicapped family members; g. Family life is to be preserved whenever possible; h. A childs right to education is to be ensured; i. Health protection for family members is to be ensured; j. The working conditions of women and young people are to be regulated

Modifications were made to the relevant marriage and family legislation by Law #105 (of September 30, 1996, dealing with the marriage contract, population registration and identity cards) as well as by Law #119 of September 11, 1996 concerning legal status documents. Thus, the identity card possessed by a Romanian citizen serves as legal proof of his/her identity , domicile and one permanent residence (children must possess their domicile either at their parents home or at a county ward facility). Marriages are to be registered at the appropriate town hall determined by the domicile(s) and residence(s) of the spouses. Foreign citizens who temporarily reside in Romania can contract and apply for marriage registration at the competent hall of records. Only Romanian citizens, however, can be married upon a Romanian-registered ship sailing outside Romanian territorial waters. If there exist any legal impediment to marriage registration (such as one concerning the age or degree of kinship of the couple), then either the President of the County Council or the Mayor of Bucharest needs to give approval for the marriage to proceed. Marriages are to be performed under normal circumstances only after 10 days have elapsed since filling the petition at the registrars office, but exceptions to this can be allowed by the County Council President or the Mayor of Bucharest if sufficient reasons are given. With the passage of Law #116 of December 15, 1992, Romania ratified the United Nations Convention governing marriage contracts, as adopted by the UN General Assembly on December 10, 1962, reserving only the right not to enact the provisions of the 2nd paragraph of the 1st article which concerns the marriage of absent spouses. In addition, some new laws have been passed which, while not specifically addressing family legal matters, affect the status of patrimony. One of these affects the legal position of newly-privatised real property under marriage law. Law #31/1990 while specifically concerned with trading companies, for instance, has also changed the concept of common property and common debts formed during a marriage. Law #114 of October 21, 1991, dealing with tenant rights, has also affected the property status of divorced marriage partners. Traditionally, Romanian law has favoured community property, whereby all marriage goods are equally shared, with the exception of goods acquired earlier by the spouses, and whose individual ownership is specifically allowed by law. Concerning marital debts, however, the opposite was true, in that all debts are generally assessed individually, except n those specific cases in which marriage debts are made common.

Recent laws have considerably modified divorce relations as enumerated in the Civil Procedure Code: Law #59 of July 23, 1993, the Family Law Code and the Law on Administrative arbitrations (#29/1990), as well as Law #94/1992 which affected the organisation and function of the Court of Accounts. Law #65 of October 5, 1993 amended the provisions of Law #59/1993, by distinguishing between the cessation and the dissolution of marriage relations. Cessation of a marriage occurs when a spouse dies, dissolutionoccurs when there is a divorce. Prior to the passage of Law #59/1993, divorce was considerated an exceptional procedure to dissolve a marriage, while the new legislation normalizeddivorce proceedings. This change logically follows both from the present conditions governing divorce procedures, and the provisions allowing for uncontested divorce proceedings. Before, solid and specific grounds justifying divorce proceedings had to be demonstrated, showing critical and irretrievable damage to the family relation , with no possibility of repair. Now the law stipulates only that critical damage need be proven for the divorce to proceed. While the prior legal provisions stipulated that it should be impossible for the marriage to continue in order for a divorce to be granted, the new legislation indicates that carrying on the marriage if either believes that the state of marriage has become impossible. Prior law established that the substance of the divorce ground as well as the impossibility of carrying on the marriage were to be considered in the light of both the duration of the union and the welfare of any children. Current law drops the consideration of the duration of the marriage, and is only concerned with the welfare of children in so far as their claims of protection, provision and housing are involved. The waiting period of 3 to 6 months provided for the previous divorce legislation has also been abrogated, and streamlined divorce proceedings are allowed in uncontested cases, if the following conditions are met: 1. at least one year has passed between the date of marriage and the date of the divorce petition; 2. there are no living children of the marriage on the filling date. Both spouses will then sign the divorce petition, which also includes any possible solution of ancillary claims. Once the spouses agreement is ascertained, the divorce petition is signed and filed and there will be a

court hearing date set 2 months hence. If at the court hearing, both spouses still desire the divorce, the court will hear the petition without assessing either the ground or the impossibility of carrying on the marriage. In these cases fault in the marriage is not assessed by the court, and no cause of divorce will be entered into the record. Any decree of divorce passed upon this spousal agreement provision is final and irrevocable. Romanian Family Law, surprisingly, does not stipulate specific and controlling reasons for divorce in the absence of a spousal agreement, with reasons being considered on a case-by-case basis by the Court. Such divorce procedures as are allowed under current legislation thereby reveal a certain peculiarities vis a vis the civil common law. In the area of adoption legislation, there has been some confusion as of late. Various laws have been passed supposedly superseding Law #11 of 1990 (Law #48 of July 16, 1991 and Law #65 of June 22, 1995), but then Law #11 of 1990 was republished in the Romanian Official Monitor #128 on June 27, 1995, citing its basis in law #65. The result of all activity is that adoptions will be permitted by the Court under certain procedures (the previous law gave the local orphanage agency the authority to govern adoptions). As the Code of Civil Procedure (amended by law #59/1993) stipulates, authority to grant adoptions rests either with the County Court or the Municipal Court of Bucharest, respectively, depending upon where the adoptive child resides, whether that be with parents or an orphanage. However, where the adoptive parent(s) are either foreign citizens or Romanian citizens residing abroad, the governing authority is to be the Municipal Court of Bucharest. In case of adoption by a foreign resident, the following rules apply: 1. The child is registered by the Romanian National Committee for Adoptions 2. There is no possibility for the child to be adopted by a family residing upon Romanian territory 3. guarantees are given that the child will be granted the right to reside in the foreign territory, and that sound provisions have been made for its future well-being and health Adoption applications are to be forwarded to the Romanian National Committee on Adoptions by the state child protection and adoption agency in the adoptive parents court. The Romanian National Committee for Adoptions will then submit the adoption petition to the

competent County Court which is obliged to resolve the case within 18 months of the adoption request filling date. According to the Romanian Family Law regulations, the adoption petition can be annulled or cancelled regardless of the method of adoption, causing either limiting conditions to be imposed, or outright denial of the adoption, subject to regulation by the 1967 European Convention on Child Adoption .

REFERENCES: Ion Filipinescu, Treatise on Family Law, Bucharest: ALL publishing(1997) Traian Ioanescu The Amendaments Made to the Civil Law Code by the Constitutional Principle of the Equality of the Sexes Justitia Noua 2 (1950) Traian Ionescu, From Adoption to Affiliation as Made by Decree #182 of October 15, 1951 Justitia Noua 7-8 (1951)

Andrew Bainham, International Society on Family Law (1996)

STIINTE ECONOMICE

THEME: FAMILY LAW DEVELOPMENTS IN

ROMANIA

OBJECT: BUSINESS LAW STUDENT: COJANU RALUCA PROF: DAJ ALEXIS