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Considerations Regarding the Absence of Impediments to the Contracting of Marriage According to the Stipulations in the Family Code and Civil Code

Considerations Regarding the Absence of Impediments to the Contracting of Marriage According to the Stipulations in the Family Code and Civil Code

Author(s): Nadia-Cerasela Aniţei / Language(s): Romanian / Issue: 1/2012

Keywords: the Family Code; the new Civil Code; impediments to the contracting of marriage; the existence of a previous valid marriage (the state of bigamy); 2. the prohibition of marriage between blood relatives; the prohibition of marriage between relatives

The impediments to the contracting of marriage are those circumstances expressly stipulated by the law whose existence incapacitates the contracting of marriage. The article present and analyzes the impediments to marriage according to articles 5-9 of the Family Code and to art.273-277 of the Civil Code. Thus, we will see that according to art.5-9 of the Family Code and to art. 273-276 of the Civil Code the impediments to marriage are: 1. the existence of a previous valid marriage (the state of bigamy); 2. the prohibition of marriage between blood relatives; 3. the prohibition of marriage between relatives by adoption; 4. the prohibition of marriage between the legal tutor and the minor child; 5. the prohibition of marriage of the mentally alienated people and of the mentally retarded people; 6. the prohibition of marriage between the people who suffer from temporary lack of judgment; 7. the prohibition of same-sex marriage. However, the provisions in the Civil Code only bring under regulation as an impediment the prohibition of marriage between the persons who suffer from temporary lack of judgment. Art. 277 paragraph 3 in the Civil Code stipulates the prohibition of the civil partnerships between people of different or same sex.

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The Marriage of Convenience and Some Effects on the Regime of Foreigners in Romania

The Marriage of Convenience and Some Effects on the Regime of Foreigners in Romania

Author(s): Gabriela Lupşan / Language(s): English / Issue: 1/2010

Keywords: simulation; fictional marriage; immigration; jurisprudence; the foreigners; legal regime

The migration, the organized crime, terrorism, human trafficking affect the societal security. In this context it is possible through the usage of simulation in some family relationships to create the appearance of some legal relationships, in the purpose of attracting the appliance of some legal depositions. The study aims at analyzing the legal mechanisms through which fictional marriage may be a "springboard" for obtaining the legal right to stay in Romania, not with the purpose to start a family, but to infringe the national security, which would lead to fueling immigration by well-known processes: family reunification, mixed marriages, birth of children, inviting relatives, adoption, etc. The interest of foreigners in Romania and its laws using legal channels to achieve an illegal goal increased considerably after Romania's integration into the EU.

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Aspects concerning liability for damages caused by minors in the context of the protection and promotion of children’s rights

aspecte legate de răspunderea pentru prejudiciile cauzate de minori în contextul ocrotirii şi promovării drepturilor copilului

Author(s): Mihnea-Dan Radu,Dana-Elena Morar / Language(s): English / Issue: 1/2018

Keywords: tort liability; children’s rights; prejudices; parents

In this study the authors analyze to what extent the legislation on the protection and promotion of children's rights influences the way in which the tort liability for the prejudices caused by underage children occurs. On one hand, the legislator protects the rights of underage children by a broad legal regulation that harmonizes with the European legal provisions in the field/area. On the other hand, though, the same legislator establishes the liability of parents and of the persons obliged to supervise minors when the children, while exercising their rights, cause damages to third parties.

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PARENTAL AUTHORITY VERSUS COMMON CUSTODY

PARENTAL AUTHORITY VERSUS COMMON CUSTODY

Author(s): Anca-Magda Voiculescu / Language(s): English / Issue: 1/2018

Keywords: parental authority; custody; domicile of the child; rights of access; best interests of the child.

The notion of parental authority introduced to Romanian legislation by the New Romanian Civil Code is totally distinct from the notion of custody specific to other domestic legislations both in theory, as in practical consequences implied.The purpose of the article is to make a comparative presentation of the two different notions mentioned above, as they are (still) constantly confused, even though a significant period of time has elapsed since the New Romanian Civil Code entered into force. Confusion comes mainly from the fact that Romanian Civil Code was inspired from Quebec Civil Code, where the legislation formally refers to the notion of parental authority, but in substance this notion presents nevertheless the caharacteristics of the concept of custody.Therefore, the objectives of the present study are to identify the content and forms regulated in legislation for each of the notions, by studying legal provisions relevant for parental authority in Romanian legislation, respectively custody in national legislations of other states. As a result, the main theoretical resemblances and differences between the two concepts will be decelated.Furthermore, the study will identify the practical consequences generated by their common points (important decisions are to be taken by agreement of both parents, whereas routine decisions can be made individually) and main differences (domicile of the child/alternate domicile and rights of access).

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Analysis of the absolute nullity of adoption by breach of the right to family life. The Decision of the European Court of Human Rights in the case of Zaieţ versus Romania

Analiza nulităţii absolute a adopţiei prin prisma încălcării dreptului la viaţă de familie. Hotărârea Curţii Europene a Drepturilor Omului în cauza Zaieţ împotriva României

Author(s): Ioana Nicolae,Georgeta-Bianca Spîrchez / Language(s): Romanian / Issue: 03/2018

Keywords: fictitious adoption; absolute nullity; right to privacy and family life;

This study is focused on the issue of fictitious adoption, and is intended to provide examples of the domestic case law regarding the termination of the adoption relationship concluded for other purpose than the purpose of protecting the best interest of the child. At the same time, as a limitation of the adoption termination, we will focus on another case pending before the European Court of Human Rights – case Zaieţ vs. Romania –, following the reasoning of the European contentious court, which found an interference with the family life of the adopted person as a consequence of ruling on the absolute nullity of his or her adoption by our national courts.

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ANOTHER MEANING OF THE NOTION OF HOME - THE FAMILY HOME, AN ESSENTIAL ELEMENT OF THE IMPERATIVE PRIMARY REGIME

ANOTHER MEANING OF THE NOTION OF HOME - THE FAMILY HOME, AN ESSENTIAL ELEMENT OF THE IMPERATIVE PRIMARY REGIME

Author(s): Carmen Oana Mihăilă / Language(s): English / Issue: 1/2018

Keywords: family home; real estate; moveable assets; consent; co-management; rented accommodation;

Inspired by the French regulation, the Romanian Civil Code has created forthe first time a very important legal regime for the family home and for the goodsfurnishing and decorating it.For the living environment is vital for the normality and balance of family life,the provisions on family dwelling come to protect the spouses and their children.An element integrated by the legislator in the primary regime (imperativenorms governing the patrimonial relations between spouses and between them and thirdparties, irrespective of the matrimonial regime), the special protection of the familydwelling aims at ensuring a balance, a real equality of spouses by avoiding abuses ofone of them that could lead to destabilization of the family.The paper deals with the regime of legal acts concerning the family home, thenature of these acts, the duration and conditions of protection, the rights of the spouseson the rented dwelling, the limitation of these rights, as well as the comparativetheoretical and practical elements of France or Quebec.

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THE PRECIPUT CLAUSE – ELEMENT OF MODERNITY IN THE NATIONAL LEGISLATION IN FAMILY RELATIONSHIPS

THE PRECIPUT CLAUSE – ELEMENT OF MODERNITY IN THE NATIONAL LEGISLATION IN FAMILY RELATIONSHIPS

Author(s): Roxana Gabriela Albăstroiu / Language(s): English / Issue: III/2015

Keywords: preciput; matrimonial conventioan; succession; spouses; matrimonial regimes;

The preciput clause is regulated for the first time in our legal system with the entry into force of the rules relating to matrimonial regimes provided under the new Civil Code regulation. It appears like a clause that spouses can stipulate in the matrimonial convention, when they choose their matrimonial regime or when the spouses change or modify the existing regime, without being required. It can only be a privilege that spouses understand to have one over another, when death comes to one of them. The matrimonial clause allow the surviving spouse to take a good from community of goods, before inheritance. This clause has created more controversy in the legal literature.

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CRIMINAL LIABILITY OF MINORS UNDER THE NEW CRIMINAL CODE. MODERNIZATION OF THE LEGAL SANCTIONATORY REGIME

CRIMINAL LIABILITY OF MINORS UNDER THE NEW CRIMINAL CODE. MODERNIZATION OF THE LEGAL SANCTIONATORY REGIME

Author(s): Rodica Panainte / Language(s): English / Issue: III/2015

Keywords: new Criminal Code; legal regime of minors; criminal liability; educational measures; non-custodial educational measures or custodial educational measures;

The New Romanian Criminal Code has brought important changes regarding the regulation of the criminal liability of the minod offenders. The article deals with the analysis of these new criminal regulations that reflect a new vision of the Romanian legislator, especially concerning the consequences of the criminal liability – the sanctions that mus be applied by the judge. In this context, we showed that the system of punishments has been entirely rethought, by giving away the penalties – such as the prison or the fee-, so that, de lege lata, the only criminal penalties that can be applied de lege lata to minors are educational measures, even if, during the criminal trial, the minor has become major.We have also analyzed another important change in the new criminal code, the distinction between two categories of educational measures applicable to minor offenders at the time of the commission of the crime: the non-custodial educational measures and the custodial educational measures. We have shortly analyzed these new educational measures, focusing on the principle of priority of applying a non-custodial educational measure, and that of the subsidiary, exceptional character of applying a custodial educational measure.The purpose of this research has been to show up the way the Romanian legislator has been implemented in the national criminal rules the european and the international regulations concerning the criminal liability of the minor offender, taking into consideration the aim proposed in the modern criminal doctrine, that of decriminalization of the penalties that can be applied to the minors.

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Dissolution of Marriage by Mutual Consent. The Divorce Before the Notary Public (II)

Desfacerea căsătoriei prin acordul soţilor. Divorţul pe cale notarială (II)

Author(s): Ciprian Raul Romitan / Language(s): Romanian / Issue: 01/2020

Keywords: dissolution of marriage; divorce; notary public; notary procedure; spouses; mutual consent of the spouses; divorce certificate; last shared residence;

Though, in general, the divorce is ordered by courts of law, by way of exception, according to the provisions in the Civil Code in force, if the spouses mutually consent to the divorce and all the conditions required by law are met, the notary public at the marriage site or the spouses’ last shared residence may acknowledge the dissolution of marriage by mutual consent, issuing a divorce certificate, according to the law. This research, which actually is a sequel to the article published in the issue no.2/2019 of this prestigious publication, reviews the legal provisions regulating the dissolution of marriage by mutual consent before the notary public, with an emphasis on the peculiarities of this procedure.

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MOTHER IN ROMANIAN POSITIVE LAW

MOTHER IN ROMANIAN POSITIVE LAW

Author(s): Elena-Cristina Savu / Language(s): English / Issue: IX/2021

Keywords: mother; wife; parentage; parent; wife;

Used from the beginning of speech, throughout life, with its own meaning woman in relation to her children or figuratively source, origin the word mother could not bypass the all encompassing field of natural law – jus naturale and the positive law. The Romanian legislator enshrines numerous provisions from which its protection and protection emerge, especially in terms of filiation, recognizing as the mother of a child only the woman who gives birth to him, rejecting the juridical fictions resulting from the gestation for another.

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Issues regarding the representation of the child victim of domestic violence

Probleme privind reprezentarea minorului victimă a infracţiunii de violenţă în familie

Author(s): Gabriela-Aura Fodor / Language(s): Romanian / Issue: 2/2020

Keywords: curator; domestic violence; conflict of interest; minor; representation;

The child’s vulnerable position during a criminal trial is most evident when he is the victim of domestic violence and the aggressor is actually the person who should ensure his protection and should exercise the child’s right of access to justice. The current legislation has a series of mechanisms to ensure that the trial can be carried out without hinderance caused by the conflict of interests that exists between the child and his legal representative or protector, but there still are areas that have not been covered by laws, which have led to claims addressed to civil courts. Their object is to apply the civil institution of the curator for the minor who has expressed a wish to end the criminal trial by reconciling with the parent infringer and because of this particularity they can generate different solutions in practice, as it will be shown in the present study.

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Exercise of parental authority in the best interests of the child – the right of the guardianship court to censor the agreement of the parties

Exercitarea autorităţii părinteşti în interesul superior al copilului – dreptul instanţei de tutelă de a cenzura înţelegerea părţilor

Author(s): Laura Cetean-Voiculescu / Language(s): Romanian / Issue: Supliment/2020

Keywords: protection of the minor; guardianship court; parental authority;

The minors are protected by the parents and the legislation sets forth that they have rights and duties towards their minor children, summed up in the phrase of parental authority, or by alternative protection measures, in case of the child temporarily or permanently deprived of the protection of his/her parents or at least one of them. In parallel with one of the ways of child protection, there is also the guardianship court, which has numerous duties in connection with the parental or alternative protection. Concerning parental authority, the role of the guardianship court is active, complex, which has the obligation to listen to the child, to protect the best interests of the child, to supervise and control how the parents exercise their rights and fulfill their parental duties and even censor the parents’ agreements when they consider that they are against the best interests of the child.

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Reflections on the principle of the best interests of the child in the parenting agreement

Reflexia interesului superior al minorului în acordul parental

Author(s): Adina Renate Motica,Oana Elena Buzincu / Language(s): Romanian / Issue: Supliment/2020

Keywords: parenting agreement; best interests of the child; notary public; alternating residence; parents’ alternating residence; listening to the minor; extended family relationships;

The parenting agreement currently represents the legal physiognomy regarding the compliance with the best interests of the child, but also the welfare of the minor reflected in the life of the future adult. Therefore, the present study sums up theories with practical applicability having as central point the finding of the balance in the development of the minor once the relationship of his/her parents got broken. We will never be able to know what would prove to be the true interest of the child but we can anticipate the possible advantage of his/her personal and professional development. In consequence, the attention paid to the exercise of parental authority, the building of relationships with the parents separately, the parents’ contribution to the costs for the child’s upbringing and education, as well as the determination of the child’s domicile must be dedicated to all aspects that may lead to the determination of the best interest of the child, as close as possible to his/her real interest.

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Birdnesting – a new approach to divorce and how we can adapt the provisions of Article 400 of the Civil Code

Birdnesting – o nouă abordare a divorţului şi despre cum putem adapta prevederile articolului 400 din Codul civil

Author(s): Lucia Irinescu / Language(s): Romanian / Issue: 1/2021

Keywords: divorce; the minor’s home; the best interests of the child; parental authority; joint custody;

Separation, divorce, and remarriage create new kinds of relationships that can require creative solutions, especially as life moves forward. During the parent’s divorce, their children’s need for stability grows. They did not ask for these massive shifts in their family structure. Even after the children grow into adults, they need functioning parents to support them, to love them and to be attentive to their needs. Finding a solution truly in the best interests of the children is possible only when adults understand that the role of parent does not end with divorce, and as co parents are willing to communicate, respect each other and give up their own ego for the welfare of their children. For such parents, birdnesting has begun to become an increasingly popular way after divorce.

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About the date of marriage dissolution and some effects of divorce

Despre data desfacerii căsătoriei şi unele efecte ale divorţului

Author(s): Cristian Mareş / Language(s): Romanian / Issue: 2/2021

Keywords: date of marriage dissolution; termination of the matrimonial regime; one spouse’s death; enforceable against third parties; separation in fact; judgement of the divorce claim;

This study examines some theoretical and practical issues related to some effects of divorce regarding the pecuniary and non pecuniary relationships between spouses that raise some debates in the doctrine, such as the date of the marriage dissolution, the termination of the matrimonial regime, the judgement of the divorce claim in case the claimant dies during the trial and the solutions that can be rendered by the custody court. The research consists in the analysis of the legal provisions applicable to these issues both from theoretical and practical perspectives.

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The natural parents' refusal to consent to adoption: drama or abuse?

Refuzul părinților firești de a consimți la adopție: dramă sau abuz?

Author(s): Lucia Irinescu / Language(s): Romanian / Issue: 7/2021

Keywords: internal adoption; consent to adoption; natural parents' right to consent to adoption; best interests of the child; approval of adoption;

What are the reasons why natural parents refuse to consent to adoption? How legitimate is the intervention of the court that can consider that this refusal is abusive? Does the answer to these questions always prove to be in the best interests of the child? Adoption is a lifelong process, a way to create or expand a family, and the court's adoption decisions are the foundation of a new life for all involved: adopted children, adoptive families and biological parents.

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Jurisprudential Aspects regarding the Personal Relations between the Child and his Parents

Aspecte jurisprudențiale privind relațiile personale dintre copil și părinții săi

Author(s): Lucia Irinescu / Language(s): Romanian / Issue: 1/2022

Keywords: superior interest of the child; parental authority; personal relationships; legal practice;

The superior interest of the child, within the meaning of Law no. 272/2004 and of the Civil Code, is limited to the child's right to a normal physical and moral development, to a socio-affective balance and to family life, a right also affirmed by art. 8 of the European Convention on Human Rights. The child has the right to grow up with both his parents, who are responsible for his upbringing and education. In the situation where the parents do not live together, the possibility of the parent with whom the child was not present to have personal relations with him must be recognized as high as possible.

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The Personal Duties of the Spouses Under Romanian Law

The Personal Duties of the Spouses Under Romanian Law

Author(s): Ciprian Raul Romițan / Language(s): English / Issue: 2/2021

Keywords: spouses; personal duties; duty of respect; duty of fidelity; duty of mutual moral support; duty of living together;

After the marriage is concluded, the man and the woman acquire the status of spouses, which confers on each of the two family members, among other things, a series of personal rights and duties. The study presents and analyzes the main duties (obligations) of the spouses, namely: duty of respect; duty of fidelity; duty of moral support; duty to live together; joint decision making (co-decision) by the spouses; and the names of the spouses during marriage. Also, as will result from this study, according to the legal provisions, each spouse must enjoy full independence as regards his or her personal life. In this respect, each of the spouses will decide on their health, their professional training and the establishment of friendship relations with other persons.

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PERCEPTIONS OF THE FAMILY IN ROMANIAN LAW

PERCEPŢII PRIVIND FAMILIA ÎN DREPTUL ROMÂN

Author(s): Mihaela Pop / Language(s): Romanian / Issue: 07/2022

Keywords: family law; private law; evolution; interpretation;

The family has been, over time, the fundamental institution for the survival of the individual and the reproduction of society, the keeper of traditions and national values, a landmark of stability. The accelerated pace of change in contemporary society has left its mark on the family, bringing important changes. It has diversified its forms, structure and functions, evolved into a plurality of models. The deinstitutionalization, individualization and democratization of family life are the most important processes he went through.

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Another kind of divorce: divorce for health reasons

Un alt fel de divorţ: divorţul din motive de sănătate

Author(s): Ioan Ilieş Neamţ / Language(s): Romanian / Issue: 2/2022

Keywords: divorce; health issues; fault; legal standing; discernment;

The study aims to analyze the substantial and procedural particularities of divorce for health reasons. Thus, after a brief introduction, the study begins with an analysis of the substantial conditions of divorce for health reasons by identifying the particularities the health issue must meet in order to justify such a divorce claim, the significance of the impossibility to continue the marriage, and the causal link that must exist between the health issue and the impasse of the marriage. In the final part of the section, we argued why fault remains a relevant element even though, if the claim is granted, it wonʼt be mentioned in the judicial decision. The second section, dedicated to procedural issues, brings into attention the particularities of legal standing in this kind of divorce claims, with a focus on the possible readings of Article 918 second paragraph Civil Procedure Code. Then, we have briefly analyzed the aspects that need to be proven and the judicial status of the defendant, especially the means at his disposal if he wishes to divorce on other grounds.

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