Admissibility conditions for divorce by notary procedure 163
lifelong commitment of fidelity, moral and material mutual help, a commitment
for maternity and paternity within the family, but also towards society5; marriage
is an institution, governed by legal provisions.
Also, marriage is monogamous, solemn, and laic, founded on the equality of
rights and obligations6.
More than a freely consented union, marriage is a bilateral legal act, a solemn
act, concluded among living people, a personal condition, namely a manifestation
of will with the purpose of creating a legal report.
Marriage is also an institution, namely a legal statute, characterized by rights
and obligations specific to the spouses, both on a personal level and on a
From a judicial point of view, marriage has significant importance as it is not
only regards the cohabitation of spouses, but it also gives rise to a series of judicial
effects. These effects can be patrimonial (in regard to matrimonial regimes) and
non patrimonial (in regard to the mutual obligations of the spouses, such as
mutual respect, fidelity, moral support, cohabitation, the obligation to carry a
mutual name or the obligation to fulfill conjugal duties)8.
2. The dissolution of marriage
Although marriage is an act concluded for life, the parties are free to decide the
dissolution of marriage and their right to decide so can’t be restricted. This is why
the lawmaker regulated three possibilities to end the marriage: the closure of
marriage, the annulment of marriage and the dissolution of marriage.
Marriage ends by the death of one of the spouses; this fact causes effect only
for the future, as the quality of spouse is kept until the time of death.
Marriage is annulled when it is affected by a cause of annulment. According to
the principles of annulment, it causes effect ex tunc, from the time the marriage
was concluded, as marriage is considered to never have been concluded. An
exception from this principle is putative marriage, in case the husband was of good
faith when entering into marriage, he is able to keep the status of husband from a
valid marriage for the period of time between the conclusion of marriage and the
time the court definitively rules on the annulment of the marriage.
Marriage can also end by divorce, as a manifestation of the spouses’ will. As
the new Civil Code regulates, divorce can occur in any of the three following
governing the exercise of this right”. In internal law, matri monial freedom is a constitutional principle
stated in article 48 first alignment, according to which family is based on the freely consented
marriage between spouses.
5 Malaurie Ph., Fulchiron H., op cit., p. 57
6 Lupaşcu D., Crciunescu C.M., Family law, Universul Juridic Publishing House, Bucharest,
2012, p. 57-58
7 Avram M., Civil law. Family, Hamangiu Publishing House, Bucharest, 2013, p. 26
8 Similarly, see Ionaş D., The preciput clause. A legate contained in the matrimonial convention,
Universul Juridic Publishing House, Bucharest, 2016, p. 14