Family law in Romania for non Romanians is one of the more complicated areas of law, especially if you come from a common law country. This is I believe why we are often asked to give advice on inheritance law in relation to unions between Romanian and non-Romanian citizens.
This is why one of the changes introduced in 2011 by the New Civil Code(“Code”) which refers to the regime of matrimonial property needs to be understood. Romanian lawyers unfortunately often fail to understand sometimes the confusion that is created by the law and its application so far as foreigners are concerned. As international lawyers based in Romania we can often throw light on the subject.
The new provisions introduced by the Code deal with three matrimonial property regimes, namely, community assets, separate assets and the division of assets during the life of the marriage.
All these are dealt with in art. 339-369 of the Code. Prior to the modification of the Code community assets was the only way stipulated by the Romanian legal system in relation to matrimonial assets and even now, under the Code it remains the basic rule. However, the law now allows the parties to chose the alternative methods which they can apply to their matrimonial assets. How matrimonial property is held can be chosen even if the marriage was concluded before the entry into force of the Code.
According to art. 329 of the Code, to choose a different matrimonial regime other than the regime of community asset the parties need to conclude a written agreement. This agreement represents a solemn act which must be authenticated before a notary public. According to art. 330 par. (1) of the Code the agreement must contain the consent of both parties. Unless otherwise agreed by the parties the matrimonial regime of asset community is considered the legal regime. According to art. 334 of the Code for the regime to be opposable to third parties, the matrimonial agreement must be registered in the National Register of Matrimonial Property Regimes.
The Code brought about a number of changes regarding the regime of matrimonial assets. Under the previous law, the law implied that assets acquired by the parties during their marriage are joint property, and therefore on death were dealt with in accordance with the provisions of the then Civil Code.
According to art. 345 of the Code there is a presumption that the other party to a marriage agrees to acts relating to common moveable goods owned by the parties in relation to their use, sale, preservation, management and acquisition. This presumption operates only for movable assets. It does not apply to land and buildings. In this case the express consent of both parties is required according to the law in order to sell such asset or deal with such an asset. Further the consent of both parties is required for the charging to a third party of any joint asset. From these there are a few exceptions, such as gifts – art. 346 of the Code.
An interesting issue is the legal status of assets used as the social capital in a company (art. 348 and 349 Code). The party who brings such an asset as a contribution to the capital of a company, or uses that asset for the acquisition of shares, must obtain the prior written consent of the other party. If the other party has not given consent then the contribution is invalid.
The Code has introduced new provisions and now allows separation of assets during the life of the marriage. This separation of assets is a new concept introduced concerning matrimonial property and which implies that each party is and can be the sole owner of the assets acquired before the conclusion of the marriage and afterwards the sole owner of the assets acquired in their name after the date of the marriage (art. 360 Code). If the parties acquire property/assets together, they become co-owners in agreed shares and the asset is not a joint asset as with community assets. The Code requires a periodic inventory of the assets of the marriage. The inventory includes all assets. In the absence of the inventory – which is drawn up by a notary – the party which deals with the asset is presumed to be its owner (art. 361 Code).
The third change introduced by the Code is the possibility for the parties to change the legal status of the assets during the life of the marriage. This is an alternative to the separation of legal assets at the time of their acquisition. This allows the parties to change the destination of the assets in the situations provided by the Code. According to the Code the parties may own assets or liabilities or can remove them from being common or joint assets. Furthermore, the parties in case they chose to hold assets as common asset can impose obligations that require the express consent of both parties for certain administrative acts which otherwise could be concluded based on the presumption of the mutual agreement.
Any of the methods of holding property during the life of a marriage can be changed during marriage either voluntarily or through a court order. In the event of a voluntary act in relation to any of the ways of holding the assets of the marriage the parties have to have been married for at least one year.
Will the changes brought about by the Code have a major influence on the parties to the marriage and their relationship? The social reasons for the original provisions in the Napoleonic Code have in part disappeared but the rules have produced major problems for land holdings in Code countries. The world is more aware of women’s rights and the equality of the sexes. The Code faces these problems and in my view is a sensible way forward.