The New Civil Code establishes the procedures one has to follow in order to get divorced in Romania. Spouses who intend to end their marriage can choose one of the three different types of divorce procedures: the judicial divorce, which requires the active role of the court, the notarial divorce and the administrative divorce. These procedures are only virtually available for anyone because, given the actual circumstances, it may be possible that the spouses could get divorced only in front of the court, if they cannot decide what name should the spouses have after the divorce or how the parental authority of the children will be exercised by the parents after the divorce, for example. Also, spouses cannot choose the administrative divorce, only the judicial or the notarial procedures, if they have underage children. The grounds for divorce in Romania are: a) the spouses agreement; b) when the marriage could not continue due to the fact that the spouses relationship was irreparably damaged; c.) if one of the spouses asks to get divorced, and they are already separated for at least 2 years; d.) if one of the spouses asks for a divorce, and he/she suffers from an illness which makes impossible the continuance of their marriage. The Romanian legislation stipulates the next three divorce procedures:

The judicial divorce

Those who want to divorce have to file a claim for divorce in court. The competent court is, the district judges from the last family residence, where at least one spouse is an inhabitant of that district. If the spouses haven’t had a common residence, or if none of them is an inhabitant in the jurisdiction of the court in which they had the last common residence, the competent judge is in the district where the defendant inhabits, and when the defendant does not have residence in the country, and the Romanian courts have international jurisdiction, is competent the district judge in which the applicant resides. If neither the defendant nor the plaintiff resides in Romania, parties may agree to introduce the application for divorce to any Court in Romania. In the absence of such agreement, the divorce petition should be addressed to the Court of the 5th District of Bucharest. Application for divorce may be filed by either spouse. Spouses are obliged to present personally in front of the judge who handles their case. If the spouse who filled the divorce application is unrightfully missing form one single term in the first instance, the application will be rejected as untenable.

A) Divorce by mutual consent of the spouses

At the end of a mutual consent divorce, the court will not determine the spouses’ guilt. According to the New Civil Code, divorce by mutual consent can be pronounced by the court, regardless of the duration of marriage and whether or not the spouses have minor children from this marriage. However, divorce cannot be pronounced by the court if one of the spouses has a medical situation that affects his judgement, because in this situation it’s not possible for him/her to express a valid consent. The judge has the legal duty to establish if the spouses have an unaffected consent, and therefore, if one of them has a serious mental illness which abolishes he’s judgement, he cannot dissolve the marriage this way. The application for divorce by agreement is filed by spouses together, but it can also be submitted by either spouse, in which case the agreement will be accepted by the other spouse.

B) Divorce due to the guilt of one of the spouses

When due to different reasons, the relations between spouses are seriously damaged and the continuation of marriage is no longer possible, the court can pronounce the divorce establishing the guilt of one of the spouses for the marriages failure. However, if the judge finds out that the guilt belongs to both spouses, the court may pronounce the divorce due to their shared guilt, even if only one of them filled the application for divorce.

When one of the spouses fills a divorce application after a separation which lasted at least two years, the court will pronounce the divorce due to the exclusive fault of the spouse who requested the divorce, who must assume that the marriage has failed, unless the other spouse declares that he agrees to the divorce, in which case the judge will pronounce the divorce without mentioning anything about the spouses guilt in what concerns the dissolution of the marriage.

C) Divorce due to health condition of a spouse

If the divorce is requested by the spouse whose health condition makes it impossible to continue the marriage, the court pronounces the divorce without establishing spouses’ fault. The court will only hear evidence in order to determine the existence of the disease from which the spouses suffers.

Divorce by the mutual agreement of the spouses – the administrative procedure

If the spouses agree to divorce and they don’t have underage children born before or during their marriage or adopted, the civil officer from where the marriage took place or from the place where their last common residence as sited, can declare the dissolution of marriage and hand out to the parties the divorce certificate. Both spouses fill together the divorce application and then the civil officer sets a 30 days period so that the spouses reflect upon their decision. When the 30 days expire, both parties must show up in person in front of the civil officer in order to follow through the divorce procedure. If the spouses fail to agree on the family name that each party will use after the divorce, or if spouses have underage children, the civil officer will reject the divorce application, and wild ask parties to submit their application to the Court.

Divorce by mutual agreement of the spouses – the notarial procedure

The notarial procedure can be used only to obtain the mutual agreement divorce and it is similar to the administrative procedure. The only significant difference is that spouses can use this procedure even if they have minor children, if they agree on all aspects which regard to: the parties name after the divorce, the exercise of parental authority by both parents, the children’s residence, the ways to maintain the relation between the parents and kids, and the parents’ contribution to the expenses needed in order to raise and educate a child. If the spouses fail to reach to an agreement on the matters indicated, the public notary will reject their application and will guide the spouses to fill their divorce application to the Court.

The application is submitted by both spouses together, to the public notary from the location where the marriage took place, or from the last family residence, and then the public notary sets a 30 days period so that the spouses reflect upon their decision. When the 30 days expire, both parties must show up in person in front of the public notary in order to follow through the divorce procedure. If they didn’t change their mind, the public notary will hand them the divorce certificate. If they do not agree to all the divorce terms, they can get divorce only in front of the Court.

Publisher: Budușan & Associates