DIVORCE LAW IN ROMANIA
Availability of Divorce
Divorce can be obtained in Romania by mutual consent of the spouses if they have been married for at least one year at the date of the application and if there are no children resulting from the marriage.
Grounds for Divorce
In the absence of mutual consent, divorce can be obtained at the request of one spouse in the following cases:
- There are serious grounds for divorce;
- There are serious grounds for the deterioration of the relationship between the spouses; or,
- Continuation of the marriage is no longer possible for the spouse applying for a divorce.
The following have been determined in Romanian cases to be grounds for divorce:
- Unjustified refusal by one of the spouses to live with the other or unjustified desertion of the conjugal home (de facto separation imputable to defendant spouse);
- Infidelity of one of the spouses;
- Bad behavior (moral or physical);
- Existence of a serious incurable disease from which one of the spouses is suffering and of which the other spouse was unaware prior to the marriage, if it is established that the symptoms of the disease subsequently become worse and are of a nature to justify the refusal of the claimant spouse to continue living with the defendant spouse since the continuation of the marriage has become impossible.
Division of Assets
Joint property can be divided either by mutual agreement of the spouses or by a court decision. If the spouses cannot agree, an application for division of the property may be lodged after the dissolution of the marriage, through the divorce proceeding, through a principal action, or at any time thereafter (incidental or accessory application).
The share of property awarded to each spouse is determined on the basis of his or her contribution to acquiring and maintaining the joint property. The wife's work in the house and care of the children are taken into account when determining each spouse's contribution to obtaining the joint property. This contribution may be established by any means of proof, since it is a de facto situation.
The court is required, even if the spouses have not made any express application regarding custody, to issue a decision concerning the custody of minor children when issuing a divorce decree. The court bases its decision concerning custody of minor children on the interest of the children. Before issuing its decision it must hear the parents, the tutelary authority and children of ten years and over. An agreement between the parents regarding custody of minor children is not binding on the court.
If the child has been in the custody of one parent, this parent has parental rights and obligations with regard to the child. The other parent maintains the right to have personal contact with the child and to oversee its upbringing and education, including occupational training.
The former spouse is entitled to maintenance if he or she is in financial need owing to incapacity to work arising before or during the marriage, or to incapacity arising within a year of the divorce provided this incapacity is owing to events relating to the divorce. The former spouse loses the right to maintenance from the other spouse if he or she remarries. If the divorce decree has found only one of the spouses to be at fault, this spouse is entitled to maintenance from the other spouse for only one year after the divorce, whereas the other spouse is entitled to maintenance for an indefinite period.
A marriage can be declared invalid on the grounds of the following breaches of the legal provisions relating to the marriage contract:
- The marriage was contracted in breach of the provisions concerning the legal age for marriage;
- The marriage was contracted by a person who was already married;
- The marriage was contracted between related persons whose degree of relationship forbids them to marry (marriage is forbidden between persons related in the direct line, regardless of the degree of relationship, or in the collateral line up to and including the fourth degree);
- The marriage was contracted between an adoptive parent, or a relative thereof, and his or her adopted child or a relative thereof;
- The marriage was contracted by a person who was insane;
- The marriage was contracted without the consent of the future spouses or such consent was not given in accordance with the legally required procedure (the marriage must be contracted before a civil registrar at the register office in the presence of the future spouses, whose consent must be given personally and publicly);
- Incompetence of the civil register official (the marriage ceremony was performed by an official not authorized to perform it);
- The marriage was contracted between persons of the same sex;
- The marriage banns were not published and there were no witnesses to the marriage;
- The consent was invalid on the grounds of error (solely concerning the physical identity of the other spouse), trickery or duress.
An application for nullity relative or nullity absolute should be lodged with the court with jurisdiction for the defendant's domicile. If the defendant is domiciled abroad or has no known domicile, the application should be lodged with the court with jurisdiction for the defendant's place of residence, or, if the defendant has no known residence, with the court with jurisdiction for the claimant's place of domicile or residence.
Which Law Should Be Applied?
The determination of the law applicable in Romania to family law matters concerning international spouses is governed by Law No. 105/1992 regarding Private International Law). In addition, the personal and property relations between the spouses are subject to ordinary national law. If the spouses are of different nationalities, they are subject to the law of their common place of domicile. Ordinary national law or the law applicable to their common place of domicile continues to apply even if one of the spouses changes nationality or place of domicile. If the spouses are of different nationalities or have different places of domicile, the personal and property relations between them are subject to the law of the State in which they have or had their common residence or in which they maintain their closest common ties. If the foreign law in question does not permit divorce or permits it subject to different conditions, Romanian law applies if one of the spouses is a Romanian citizen at the date of the application for divorce.