Couples in Romania
1. Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?In accordance with Article 2590 of the Civil Code, the law applicable to the spouses’ matrimonial property is the law chosen by them. If no choice is made in this respect, the matrimonial property is governed by the law applicable to the general effects of marriage. Article 2589 of the Civil Code provides that the general effects of marriage are governed by the law of the spouses’ common habitual residence, and if the spouses have no common habitual residence, by the law of the country of the spouses’ common nationality. If the spouses have no common nationality either, the law of the state on whose territory the marriage was celebrated applies. However, it is worth noting that, by way of exception from such provisions, the spouses’ rights over the family dwelling and the regime of instruments relating to such dwelling are governed by the law of the place where the dwelling is located. Romania is not a signatory to the Hague Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes.
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?Spouses have the possibility to choose the law applicable to their matrimonial regime. Their choice is limited in accordance with Article 2590 paragraph 2 of the Civil Code to: the law of the state on whose territory one of the spouses has his/her habitual residence on the date when the choice is made, the law of the state whose nationality either of the spouses has on the date when the choice is made, or the law of the state where the spouses establish their first common habitual residence after the celebration of marriage. The choice-of-law agreement may be concluded before the celebration of the marriage, at the same time as the celebration of the marriage or during the marriage. In terms of form, the agreement has to fulfil the conditions provided by the law chosen as applicable or by the law of the place where the agreement is concluded. However, a document signed and dated by both spouses is mandatory in all cases. Unless otherwise agreed by the spouses, the newly chosen law produces its effects only for the future. It may not harm any third parties’ rights.
2. Is there a statutory matrimonial property regime and if so, what does it provide?
2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?If the spouses fail to conclude a marriage contract, the matrimonial property regime applicable to them is the statutory community of property regime. According to this regime, all the assets acquired during the community of property regime by either of the spouses are part of their common property as provided by Article 339 of the Civil Code. The personal property of each spouse, as provided by Article 340 of the Civil Code, comprises the following assets: assets acquired by legal inheritance, legacy or donation, unless the testator or donor expressly provided that the assets shall be part of the common property; assets for the personal use of a spouse; assets for the exercise of a spouse’s profession; intellectual property rights over a spouse’s works; assets acquired as a prize or as a reward, scientific or literary manuscripts, drawings and artistic projects, invention projects; insurance benefits and compensation for any material or moral prejudice caused to either spouse; the assets, the amount of money or anything of value replacing personal assets, as well as the assets acquired in exchange for such assets, as well as the fruits of personal assets.
2.2. Are there legal assumptions concerning the attribution of property?If no inventory (see under 2.3.) has been established, the movable assets are presumed to be part of the common property until evidence to the contrary is produced. In accordance with Article 357 paragraph 2 of the Civil Code, the spouses are presumed to have had an equal contribution in the acquisition of common property and the fulfilment of common obligations, until evidence to the contrary is produced.
2.3. Should the spouses establish an inventory of assets? If so, when and how?In accordance with Article 343 paragraph 3 of the Civil Code, within the statutory community of property regime, spouses should make an inventory of the movable assets acquired before marriage, either with a civil law notary or under private signature, and this inventory should be drafted before the conclusion of the marriage. Also if the spouses choose the separation of property regime (see under 3.1.), an inventory of the movable assets covered by the agreement has to be established by a civil law notary.
2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?As regards common property, each spouse is entitled to use and administer common property and to acquire common property by him/herself, without the other spouse’s consent (Art. 345 of the Civil Code). Legal transactions concerning the alienation and encumbrance of common property may be concluded only with both spouses’ consent. However, for the common movable property whose alienation is not subject to any publicity-related formalities, either spouse may dispose of the property by him/herself (Art. 346 of the Civil Code). Otherwise, a legal transaction concluded without the other spouse’s express consent may be annulled.
The legal transactions regarding the family dwelling, which is the spouses’ common dwelling, or otherwise, the dwelling of the spouse where children live, are governed by a special regime. A spouse may not dispose of the rights over the family dwelling by him/herself or conclude acts affecting the use of such dwelling even if he/she were the exclusive owner of the dwelling. However, if the consent of the other spouse is withheld with no legitimate reason, the Court competent in matters of family and guardianship may authorise the conclusion of the act. The spouse who did not give his/her consent may request the annulment of the act if the dwelling had been registered with the land register as a family dwelling. The annulment can be requested even if the family dwelling nature has not been registered, but was known to the acquiring third party for other reasons. Otherwise only damages may be claimed from the other spouse (Art. 322 of the Civil Code).
2.5. Are any legal transactions made by one spouse also binding on the other?The obligations assumed by either spouse to cover the usual expenses of the marriage and the expenses arising in connection with the maintenance, administration and acquisition of common property are the spouses’ common obligations, even if such obligations were contracted only by one of them, and spouses are liable for such debts with their common property (Art. 351 of the Civil Code).
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?Spouses are liable with their common property for the common debts incurred as provided by Article 351 of the Civil Code. However, if the common property is not sufficient to cover the common obligations, the spouses are jointly liable with their personal property, and the paying spouse has a right of recourse against the other spouse and a right of retention until he/she has been compensated (Art. 352 of the Civil Code).
3. How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?Spouses may choose between the statutory community of property regime, the conventional community of property regime and the separation of property regime. In a conventional community of property regime, the spouses may extend or restrict the scope of the common property, regulate the modalities of a possible future division of the common property or provide that for certain acts of administration the consent of both spouses shall be necessary. If they provide for a separation of property regime, each spouse will retain the property he/she owned before the marriage and will become the sole owner of the assets he/she individually acquires during the marriage. However, spouses may not depart from the primary regime regulated under Articles 313 to 328 of the Civil Code, irrespective of the matrimonial property regime they choose.
3.2. What are the formal requirements and who should I contact?The marriage contract by which another regime than the statutory community of property regime is chosen has to be authenticated by a civil law notary, otherwise it will be subject to absolute nullity.
3.3. When may the contract be concluded and when does it come into effect?A marriage contract may be concluded before marriage, in which case it will produce its effects only as of the date the marriage is celebrated. The marriage contract may also be concluded during marriage, in which case it produces its effects as of the date of its actual conclusion (Art. 330 of the Civil Code).
3.4. May an existing contract be modified by the spouses? If so, under what conditions?In accordance with Article 369 of the Civil Code, if the marriage was concluded at least one year before, the spouses may replace, whenever they want, the existing matrimonial property regime with another regime or modify the existing regime, in line with the substantive and formal conditions provided by law for the conclusion of marriage contracts.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?In Romania, the choice of a matrimonial property regime, other than the one of legal community, is made by concluding a matrimonial convention. In principle, the matrimonial convention may be drawn up before the conclusion of the marriage or even on the day the marriage is concluded, but also during the marriage. The spouses may replace the existing matrimonial property regime with another matrimonial property regime or amend it, in compliance with the conditions laid down by law concerning the conclusion of matrimonial agreements, if at least one year has passed since the marriage was concluded.
Concerning the date from which a matrimonial convention concluded between the spouses during the marriage takes effect, it shall be laid down by the parties in the concerned document or, in absence, the date on which the convention was concluded. The matrimonial convention shall be registered in the National Notarial Register of matrimonial regimes (R.N.N.R.M.), only after the conclusion of the marriage.
4. Can or must the matrimonial property regime be registered?
4.1. Do one or more matrimonial property registers exist in your country? Where?Marriage contracts have to be registered with the National Matrimonial Property Regimes Registry kept by the National Union of Notaries of Romania (Uniunea Naţională a Notarilor Publici din România), the civil status registry in place at the institution where the marriage is concluded, and other publicity registries, depending on the nature of assets (Trade Registry, Land Register, etc.).
4.2. Which documents are registered? Which information is registered?A copy of the marriage contract has to be filed with the National Matrimonial Property Regimes Registry and the civil status registry as well as the other registers mentioned.
4.3. How and by whom can the information in the register be accessed?Any person may query the National Matrimonial Property Regimes Registry and may request the issuance of excerpt certificates (Art. 334 para. 5 of the Civil Code), without being held to justify any interest.
4.4. What are the legal effects of registration (validity, opposability)?A marriage contract is only opposable to third parties if it has been registered.
4.5. Can a matrimonial contract concluded in a foreign state according to foreign law be registered in your country and if so, under which conditions?In order to be enforceable against third parties, matrimonial conventions shall be registered în the National Notarial Register of matrimonial regimes (R.N.N.R.M.), organized according to the law. The special law to which this regulation refers to is the Law No. 36/1995 on civil-law notaries and notarial activity, republished, according to which at the Union’s level is operating, among other registers, the National Notarial Register of matrimonial regimes (R.N.N.R.M.), where the matrimonial property regime chosen by the spouses is registered, in order for it to be enforceable against third parties.
In Romania, a marriage convention concluded in another State can be registered in the National Notarial Register of matrimonial regimes (R.N.N.R.M.); according to the law, the matrimonial conventions concluded by foreign civil – law notaries or other foreign authorities shall be registered only by the administrators of R.N.N.R.M., with prior consultation of the Commission of Experts in Notarial Matters.
The procedure through which a matrimonial convention concluded abroad can be registered is laid down in the Romanian law.
Several situations can be distinguished, namely:
- if both the marriage and the matrimonial convention are concluded abroad and at least one of the spouses is a Romanian citizen, he / she shall request the transcription of the marriage certificate to the competent authority: either at the civil status in whose district at least one of them is domiciled, or at the Civil Status of Sector 1 of Bucharest, if none of them is domiciled in Romania. The application for the transcription of the marriage certificate shall be accompanied by the authenticated translation of the matrimonial convention, apostilled, or where appropriate, over-legalized; the civil status officer or either spouses shall request the RNNRM to fulfil the publicity conditions of the marriage certificate by mentioning the chosen matrimonial property regime.
- when the marriage is concluded abroad and at least one of the spouses has Romanian nationality, he / she shall request to the civil – law notary to authenticate the marriage convention after the marriage certificate has been sent, in compliance with the jurisdiction.
- when the registration of a matrimonial agreement is requested for spouses or future spouses (none of which has a habitual residence in Romania or Romanian nationality), the registration in the RNNRM shall be done if they submit the convention for the choice of law applicable to the matrimonial property regime, from the content of which it should result that they have chosen the Romanian law to be the law applicable to the matrimonial property regime and as the law of the state where they will establish their first common habitual residence.
5. What are the consequences of divorce/separation?
5.1. How is the property (rights in rem) divided?In the event of a divorce, the matrimonial property regime is terminated starting with the date when the application for divorce is filed, unless the spouses requested the court or the authority issuing the divorce decision to establish that the property regime was terminated on the date of the de facto separation (Art. 385 of the Civil Code). In this case, the common property is divided according to the spouses’ agreement or by the court, if no agreement is reached. The instrument of division can be a court decision or a document concluded in authentic notarial form (Art. 320 of the Civil Code). In the event of a statutory or conventional community of property, such community is divided as follows: each of the spouses takes his/her personal property, the common property is distributed between the spouses and debts are adjusted. The share to which each spouse is entitled is determined based on his/her contribution to the acquisition of common property and the fulfilment of common obligations (Art. 357 of the Civil Code). The work done by either spouse in the household and to raise the children is considered as a contribution to the marital expenses (Art. 326 of the Civil Code).
5.2. Who is liable for existing debts after the divorce/separation?In the course of divorce, debts are adjusted as agreed by the spouses. Otherwise, debts are adjusted by the court.
5.3. Does one spouse have a claim to an equalisation payment?If in the course of distribution of the common property the assets assigned to a spouse exceed the share to which he/she would have been entitled considering his/her contribution to the acquisition of these assets, the other spouse has the right to receive a balancing payment. Apart from this, the spouse who has no fault with regard to the divorce and who suffers a prejudice due to marriage termination may claim compensation from the other spouse. If the divorce causes a significant deterioration of the living conditions of the claimant spouse, the marriage lasted for at least 20 years, and the divorce was ordered for the exclusive fault of the defendant spouse, the claimant spouse is entitled to an even higher compensation (Art. 388 and 390 of the Civil Code).
6. What are the consequences of death?
The surviving spouse inherits from the deceased spouse if no final divorce decision exists on the date when the inheritance proceedings are opened (Art. 970 of the Civil Code). The share of the estate to which the surviving spouse is entitled shall be: one quarter of the estate if the estate is divided between him/herself and the deceased’s descendants, one third of the estate if the estate is divided between him/herself, the deceased’s privileged ascendants (parents) and also the deceased’s privileged collateral relatives (brothers, sisters and their descendants), one half of the estate if the estate is divided only between him/herself and either the privileged ascendants or the privileged collateral relatives, three quarters of the estate if the estate is divided between him/herself and either the deceased’s ordinary ascendants (grandparents and their ascendants) or the deceased’s ordinary collateral relatives (uncles, aunts, cousins of first degree, brothers and sisters of the grandparents). If the deceased has no other legal heirs, the surviving spouse receives the entire estate (Art. 972 of the Civil Code).
7. Does your national law provide a special matrimonial property regime for multi-national couples?
8. What does the law provide for the property of registered and non-registered partners?
Registered or non-registered partnerships are neither acknowledged nor regulated by Romanian law.
9. Which is the competent authority to turn to in cases of disputes and other legal issues?
Outside the scope of application of Regulation 2201/2003, according to the provisions on international jurisdiction of the Romanian Law on Private International Law No. 105/1992, Romanian Courts have exclusive competence to deal with dissolution, nullity, and annulment of marriages and with other disputes among spouses (excepting those related to immovable property located abroad) if at the date of the claim both spouses have their domicile (“domicile” is the place declared by a person as being his/her main dwelling) in Romania and one of them is a Romanian national or a person without citizenship. Romanian courts are also competent to deal with all matters related to immovable property located in Romania.