CONSIDERATII PRIVIND NULITATEA RELATIVA A CASATORIEI POTRIVIT DISPOZITIILOR DIN CODUL CIVIL
CONSIDERATIONS ON THE RELATIVE NULLITY OF MARRIAGE UNDER THE PROVISIONS OF THE CIVIL CODE

Summary/Abstract: Our article studies the cases of relative nullity of marriage, the legal status of relative nullity of marriage and the effects of relative nullity of marriage in terms of art. 297-303 of the Civil Code. If necessary, we will make suggestions of lex ferenda on certain provisions regarding the relative nullity of marriage. The nullity of the legal act of marriage is the civil penalty which follows the inobservance of some of the requirements of validity established by law, its acknowledgment or ruling removing the effects of that marriage. The Civil Code stipulates in articles 296-303 the following cases of relative nullity of marriage: 1. Marriage is contracted without the consent of parents or guardian or without the authorization of court guardianship; 2. Marriage is contracted without the consent of the parent who exercises parental authority; 3. Marriage is contracted by the existence of one of the following error vices of consent: error, fraud or duress; 4. Marriage is contracted by a person temporarily devoid of discernment ; 5. Marriage is contracted between a guardian and a minor person under his/her guardianship. Regarding the legal status of marriage nullity we distinguish between absolute nullity and relative nullity of marriage. In case of the relative nullity of marriage the following rules may be applied: - it may be invoked by the spouse claiming that his consent was vitiated by error, fraud or duress; - it can be raised by parents or guardian or court guardianship as well as by the parent representing the parental authority where consent or authorization is required. - limitation of action in finding the relative nullity is of 6 months; - the nullity grounds can be proved by any of the evidence allowed by law. As far as the consequences of nullity of marriage, regarding both the absolute nullity and the relative nullity, although produced by different reasons and under different legal rules, they generate the same effect, namely the abolition, both in the past and in the future of marriage as if it never existed. So, the provisions of art. 291, 334 and 335 of Civil Code shall apply accordingly.

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