Unele consideraţii referitoare la continuarea acţiunii de divorţ de către moştenitori
Certain considerations regarding the continuation of the action for divorce by the legal heirs

Summary/Abstract: One of the novelties brought by the Civil Code in the matter of the divorce shall consist of the possibility to continue the action for divorce by the legal heirs. According to art.380, if the court pronounces a decree of the fault divorce for certain good reasons, under the provisions of art.373 letter (b), if the plaintiff spouse dies during the conduct of the legal proceedings, his/her legal heirs are able to continue the action for divorce. The action for divorce continued by the legal heirs shall be admitted if only the court finds the exclusive fault of the defendant spouse. Certain conditions may be extracted from the content of this legal text: the death should have occurred during the conduct of the legal proceedings; the deceased person should be the plaintiff in this case; the legal heirs should request the continuation of the action for divorce brought by their author; the exclusive fault of the defendant spouse should result from the produced evidence. A practical importance has also the date of the marriage dissolution, but also the enforcement of art. 80 NCC in time. In order for the abovementioned legal provision to be applicable, the plaintiff’s death should have occurred subsequently to the filing of the action for divorce with the court’s registry office or subsequently to its service by registered letter to a post office or to another legal entity carrying on courier services. From the point of view of the legal merits invoked by the plaintiff, it should be mentioned in the divorce claim that art. 380 NCC shall become enforceable if only the provisions of art.373 letter (b) NCC were invoked as the merits. The notion of plaintiff shall be construed so that it represents the party who filed the main claim founded on the provisions of art.373 letter (b) NCC and the defendant party who filed a counterclaim and invoked the same legal provisions as the legal merits. The proof of the heir capacity for the purpose of continuing the action for divorce may be made based upon the documents related to the civil status – in case of the legal heirs – or by presenting the will – in case of testamentary heirs. In case of the approval of the action for divorce filed subsequently to the effective date of the New Code of Civil Procedure, continued by the plaintiff’s heirs, the court shall establish the date of the claim filing as the date of the marriage dissolution. Art. 380 NCC shall be enforceable also if the action for divorce has already been pending before the court prior to the effective date of the New Civil Code. However, in this case the plaintiff’s death should have occurred subsequently to the 1st of October 2011, otherwise he/she is in the presence of the retroactive enforcement of the civil law.

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