Termene de decădere în raporturile de familie
Forfeiture time limits in family relationships

Summary/Abstract: The present study addresses the issue of the apparent tension between legal certainty, which requires finality through the use of time limits, and the pursuit of spouses’ substantive rights, whose diligence in taking action may be compromised by the dynamics of the marital relationship. The European Union has undertaken efforts to harmonise certain aspects of family law, such as rules on jurisdiction, recognition and enforcement of judicial decisions, through instruments such as Brussels II bis, the Rome III Regulation and Regulation (EU) 2019/1111. However, family relationships, including limitation and forfeiture periods, remain within the competence of national legislators. In family relations, the term “forfeiture” (forclusion) refers to the loss of a right or claim as a result of the passage of time or inactivity and should not be confused with its meaning in criminal law, where it denotes the confiscation of illicit proceeds. The study examines four situations under the civil Code in which the legislature expressly establishes time limits for the exercise of certain proprietary potestative rights between spouses. First, Article 322 para. (4) of the civil Code regulates the maximum period within which the spouse who did not consent to the conclusion of one or more acts of disposition infringing the legal regime of the family home, carried out by the other spouse, may bring an action for annulment. Secondly, Article 337 para. (3) of the civil Code provides for a one year time limit for bringing an action for annulment of a matrimonial agreement concluded by a minor or by a person benefiting from judicial assistance or special guardianship. Thirdly, Article 388 of the civil Code establishes the right of the innocent spouse to damages in the event of a fault based divorce. Finally, Article 391 para. (1) of the civil Code provides for the possibility of claiming a compensatory allowance, both claims being admissible only when submitted together with the divorce application. While in the first two cases the time limits affect the subjective civil right itself, the latter two concern a specific procedural stage determined by the ancillary nature of these two proprietary claims to the divorce proceedings, which may be adjudicated exclusively within this special procedure. The subjective civil right to claim damages or to rebalance proprietary relations following the dissolution of the marriage is not extinguished and may be exercised subsequently on a different legal basis from that underlying the special right provided in divorce matters.

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