Admissibility conditions for divorce by notary procedure
| Author | Diana-Geanina Ionas |
| Position | Assistant Lecturer, PhD, Faculty of Law, Department of Law, 'Transilvania' University of Brasov |
| Pages | 162-169 |
162 DIANA-GEANINA IONAŞ
ADMISSIBILITY CONDITIONS FOR DIVORCE
BY NOTARY PROCEDURE
Diana-Geanina IONAŞ
Assistant Lecturer, PhD, Faculty of Law, Department of Law
“Transilvania” University of Braşov
diana.ionas@unitbv.ro
Abstract:
In Romanian law, the dissolution of marriage is possible in any of the three following ways: by
administrative procedure, by judicial procedure or by notary procedure. The general conditions for
divorce require an agreement from the parties, full capacity and exercise of civil rights and the freely
expressed and non vitiated consent of the spouses. The special condition required from notary divorce
is the agreement of both spouses. The spouses must be in agreement not only in regard to the request
for the dissolution of marriage, but also in regard to all aspects which derive from that, namely the
names the spouses will have after the divorce, the custody of the minor children who resulted from
the marriage or who were adopted.
Keywords: conditions, spouses, minors, agreement, notary procedure.
1. Certain aspects regarding family and marriage
The notion of family is not defined by the lawmaker, as it is not a legal
institution in itself. Family is a fact, but also a legal situation when it regards the
relations of marriage, as marriage is the ach which creates family1. Thus, marriage
is unconceivable without family.
The Civil Code states in article 259 first alignment as follows “marriage is the
freely consented union between a man and a woman, concluded under the
conditions of law”. From the lawmaker’s phrasing, we mention the following legal
characteristics of marriage2: it represents the union between a man and a woman,
as Romanian law forbids same sex marriage3; the right to enter into marriage is an
absolute right, acknowledged by both internal and international law4; marriage is a
1 Malaurie Ph., Fulchiron H., La famille, 4e ed., Defrenois Publishing House, Paris, 2011, p. 5-12
2 Malaurie Ph., Fulchiron H., op cit., p. 54-58
3 In regard to this aspect, we believe the lawmaker is intensely preoccupied to redefine family as
a response to the challenges of civil society which is in permanent change
4 Article 16 of the Universal Declaration of Human Rights states the following:
„1. Men and women of full age, without any limitation due to race, nationality or religion, have
the right to marry and to found a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.”
Similarly, article 12 of the European Convention on Human Rights states that “Men and women of
marriageable age have the right to marry and to found a family, according to the national laws
Law Review vol. VII, special issue, December 2017, p. 162-169
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
patrimonial one7.
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
164 DIANA-GEANINA IONAŞ
procedures: by judicial procedure, by administrative procedure and by notary
procedure.
As the subject of the present article is divorce by notary procedure, we will
present the conditions of the amicable divorce by notary procedure.
3. Divorce by notary procedure
In case the spouses agree on the fact that continuing the marriage is no longer
possible, they have the right to request the dissolution of marriage by non
contentious procedure, amicably, namely by notary procedure.
This possibility of dissolution of marriage was regulated by Law no 202/2010
as a response to the new social realities and as an acknowledgement of the
character of bilateral legal act of marriage, which, as it was born by an agreement
of will of the parties, can also cease by an agreement of will of the parties
(according to the principle mutuus conssensus mutuus dissensus).
Initially, the competence of the notary extended only to marriages where there
were no minor children; subsequently, by law 71/20119, the Civil Code
reconsidered the institution of divorce by spousal agreement, by allowing the
spouses to use then notary procedure even when they have minor children.
The reason for such a solution is the fact that the spouses’ agreement in regard
to their minor children is subject to censorship and control of tutelary authority
and the public notary, as they are obliged to respect the superior interest of the
minor (even if he can’t appreciate on it). Thus, as long as the minor’s best interest is
guaranteed by institutions of the state, even if they have non contentious activity,
there are no valid reasons which prevent the spouses from deciding in matters
regarding their minor children.
The notary procedure has several obvious advantages; it is time efficient, less
expensive, matters which are significant during such stressful times both for the
spouses and their children. Another important advantage is the confidentiality of
the debates.
In order for a divorce application to be admissible, it must meet certain
conditions which result from the legal provisions which apply in this matter. These
conditions can be classified in two categories: general admissibility conditions of
divorce and special admissibility conditions of divorce by notary procedure.
A first general condition required by law, regardless of whether divorce is
pronounced by judicial, administrative of notary procedure, is full exercise
capacity of both spouses. Thus, article 374 second alignment of the Civil Code
states that divorce by agreement of the parties can’t be performed if one of the
spouses does not have full capacity. Exercise capacity is part of civil capacity and it
entails a person’s ability to conclude legal acts on its own. Full exercise capacity is a
9 Law no 71/2011 for the enactment of Law no. 287/2009 regarding the Civil Code published in
the Official Bulletin no 409 of June 10th, 2011
Admissibility conditions for divorce by notary procedure 165
formal condition, general and essential for the validity of the legal act; it is
acquired once the person reaches 18 years old (or previously under the conditions
stated by article 39 and 40 of the Civil Code) and is lost when the person dies or is
placed under interdiction (or, exceptionally, by ruling on the annulment of the
marriage concluded by a minor or by annulment of the marriage concluded by a
minor of bad faith). Thus, placing a person under interdiction causes the loss of
exercise capacity and the impossibility of divorce by spousal agreement. As it is an
essentially personal act, this application can only be filed by the person itself. Full
exercise capacity must exist both at the time the application for divorce is flied and
subsequently, throughout the entire procedure; otherwise the application will be
rejected.
The parties are required to inform the notary if either of them is placed under
interdiction. The opposability of interdiction requires it to be mentioned on the act
of birth of that specific person.
The National Union of Public Notaries holds the National Notary Register
regarding the capacity of people, administered by CNARNN – Infonot; however it
is not yet functional, as the parties are not obliged to mention if they are placed
under interdiction; in the lack of any such mention, capacity is presumed to exist.
In case the person who is placed under interdiction files an application for
divorce and the public notary is unaware of his lack of capacity, his application is
admissible and divorce is pronounced. But is the divorce certificate valid? The
answer is yes, but it is merely temporary, provided it is not annulled. We believe
that, in this case, by applying the general rules, only the legal guardian of the
person who is placed under interdiction will be able to request an annulment of
the divorce certificate and only in case it can be proven that the spouse will full
exercise capacity was aware that the other spouse was placed under interdiction.
In case the other spouse was unaware of the face that his spouse was placed under
interdiction, the spouse is presumed to have had capacity throughout the entire
procedure, thus annulment of the divorce certificate wouldn’t be possible. The
capable spouse would not be able to annul the divorce certificate regardless of
whether he was of good faith or bad faith and regardless of whether the publicity
formalities were performed or not, as the placing under interdiction is a measure
meant to exclusively protect the person who is placed under interdiction. As it is a
civil act, according to the provisions of article 100 of the Civil Code, the annulment
of the divorce certificate is possible only by judicial means.
The second general admissibility condition for divorce by spousal agreement
is the freely expressed and non vitiated consent of both spouses. Consent is a
formal, general and essential condition for the validity of the legal act; it entails the
exteriorization of the decisions to conclude a legal act10, namely divorce. In order
10 Boroi G., Anghelescu C.A., Civil law course. The general part, Hamangiu Publishing House,
Bucharest, 2011, p. 127
166 DIANA-GEANINA IONAŞ
for it to be valid, it must meet the general conditions, namely to be exteriorized, to
be expressed with the purpose of causing legal effects, to come from a person with
reason and to not be affected by vices.
In regard to the first conditions of consent, in the matter of divorce, the
manifestation of will must be express and contained in a written request by both
spouses, personally or through their legal representative and with predetermined
content. By exteriorizing their will, the spouses aim to cause legal effects, namely
the dissolution of their marriage. The current Civil Code does not provide an
express definition of judgment but, by interpreting the provision of article 211 of
Law no 71/2011 for the coming into force of the Civil Code11 and, considering the
provisions of article 5 letter k of the Law on mental health and the protection of
people with mental disease no 487/2002, republished12, judgment can be defined
as a person’s ability to exercise its rights and obligations by analyzing and correctly
anticipating the potential consequences which derive from its actions13.
French doctrine defines judgment as a permanent or temporary alteration of
the mental capacity likely to exclude the conscientious and clear will of a person14.
The existence of judgment is presumed in case of people with full exercise
capacity. The existence of judgment is searched at the time the application is filed
but also throughout the entire procedure of divorce; the lack of judgment causes
the annulment of the divorce certificate. Disrespecting the conditions regarding
judgment must be proven by those who invoke it and, given that it is a state of fact,
it can be proven by any means available.
In order to be valid, consent must be free and unaffected by vices. The vices
which can affect consent in the matter of divorce are error, fraud and violence.
Lesion is excluded given the patrimonial character of the acts which are affected by
it. Without analyzing each of them, we only mention that the sanction, in case
consent is affected by vices, is the annulment of the divorce certificate released
under these conditions; annulment can only be ruled upon by judicial means
under the conditions of common law.
11 Article 211 of Law no 71/2111 for the enactment of Law no 287/2009 regarding the Civil Code:
„In the understanding of the Civil Code, as well as the current civil law, mental disease or mental
illness is a psychological condition which renders a person psychologically incompetent of acting
critically and impairs on his ability to predict the social-legal consequences which can derive form the
exercise of his civil rights and obligations”
12 Article 5 letter k) of the law on mental health and the protection of people with mental disease
no 487/2002, republished (Official Bulletin nor 652 of September 13th, 2012): “(…) k) judgment is that
certain component of mental capacity which refers to a certain fact and from which derives the
possibility of that certain person to appreciate on the content and consequences of this fact”
13 Szekely R., General configurations of judgment in Romanian Civil law, in Studia Universitatis
Magazine Babeş-Bolyai –Iurisprudentia series no 4/2013, available at http://studia.law.ubbcluj.ro/
articol.php?articolId=584 accessed on 27.11.2014
14 Renault-Brahinsky C., Droit des successions, 6e ed., Gualino, Paris, 2011, p. 110
Admissibility conditions for divorce by notary procedure 167
The special condition of divorce by notary procedure, the sine qua non
condition of such a procedure, pertains to the agreement of spouses. The
agreement can be defined as the common will of the spouses, manifested as such,
in order to end the relation of marriage and to solve the patrimonial and non
patrimonial subsequent aspects.
The agreement of spouses must pertain not only to the investment of the
public notary to end their marriage but also in regard to all aspects which derive
from it, such as the name they will have after the marriage ends, the agreement in
regard to their minor children, resulted from the marriage or outside of marriage
or by adoption.
Although notary activity is exercised outside the borders by the diplomatic
and consular offices of Romania, they are not competent to handle notary divorce
procedures. Thus, from a material point of view, the competence of pronouncing
divorces by notary procedure belongs only to public notaries.
From a territorial point of view, the competence of ruling on divorce is
alternative and it belongs to the notary who is located in the same county where
the marriage was concluded or to the public notary who is located where the
spouses had their final common residence. The territorial competence of public
notaries named in Bucharest County is extended throughout the county. Proof of
the place where the marriage was concluded is achieved by the marriage
certificate. The last common residence is the last residence where the spouses lived
together. Proof is usually achieved by the identification papers of the spouses. In
case such proof is impossible as their identification papers have different
domiciles, competence will belong to the public notary of the county where the
spouses declare to have had their final common residence. Thus, from a legal point
of view, what is of concern is not the last domicile, but the last place where the
spouse have effectively lived together.
When receiving the application for divorce, the first obligation of the public
notary is that of verifying his competence. In case he finds the competence does not
belong to him, he will refuse to register the application and will direct the parties
towards the competent notary. Although the notary procedure in non contentious,
there is a possibility the parties might insist to register the application for divorce,
in which case the public notary will be forced to register it and reject is, as the
provisions regulating competence are imperative.
As the notary procedure entails, as previously shown, an agreement from both
spouses, the application for divorce is filed by both spouses, personally or by legal
representative. In case the representative represents both spouses, it is necessary
for the mandate to respect the provision of article 1304 of the Civil Code regarding
double representation. The possibility of representing one of the spouses is limited
to filing the divorce application, as the law imperatively requires the spouses to be
present in front of the public notary. Thus, the public notary is required to verify
168 DIANA-GEANINA IONAŞ
the general and special conditions for the admissibility of the divorce by spousal
agreement.
If and after the spouses agreed on investing the public notary with
pronouncing their divorce, an agreement must be reached in regard to the non
patrimonial aspects resulted from marriage, such as the names the spouses will
have after the marriage ends and in regard to their minor children.
Spousal agreement regarding the last name the spouses will carry after divorce
is a bilateral act provided the suspense condition15 of admission of divorce
application. This agreement can be modified at any time within the 30 day
reflection term provided there is a request by both spouses.
Spousal agreement regarding the common children resulted from marriage,
from outside of marriage or by adoption, must exist from the time the divorce
application is registered until the time divorce is pronounced. This entails the
parties reach an agreement regarding the following aspects: the common exercise
of parental activity, establishing the residence of minor children, the ways by each
of the parents will maintain a relation with each child and the expenses necessary
for the education and professional training of minors.
In regard to these aspects, we must state that both spouses can only decide on
commonly exercising parental authority and contribute to the growth, education
and professional training of the minor.
This agreement must be stated in an express manner, in writing and even in
the divorce application, but it is subject to confirmation by the tutelary authority.
Thus, even if the parents are the legal representatives of the minors, their will
regarding the minors is subject to control of the tutelary authority. This control
entails the respect of the superior interest of the minor and is stated in a
psychosocial inquiry report.
The psychosocial inquiry report is drafted by the tutelary authority located at
the domicile of the parent with whom the minor will reside. In order for the
tutelary authority to draft this report, the public notary is required that, right after
he registers the divorce application, to provide the tutelary authority with a copy
of the divorce application which states the agreement of the spouses regarding the
minors; he also must communicate the term in which the divorce procedure must
be finalized.
In order to finalize the divorce procedure, it is necessary that the psychosocial
inquiry must be filed until the term indicated by the public notary. At that time,
the public notary will proceed to hear the minor who is above the age of 10. In case
the conclusions of the inquiry and the opinion of the minor are in agreement with
the parents’ decision, nothing prevents the notary from pronouncing the divorce.
What happens if the conclusion of the inquiry indicates that the superior interest of
15 Negril D., Divorce by notary procedure. Theoretical and practical studies, Universul juridic
Publishing House, Bucharest, 2014, p. 88
Admissibility conditions for divorce by notary procedure 169
the child is divergent from the parents’ agreement? Or what happens if the opinion
of the minor does not coincide with the conclusions of the psychosocial inquiry? In
both situations, the public notary will be forced to reject the divorce application as
he is not authorized to appreciate on the superior interest of the minor.
4. Conclusions
The admissibility of divorce by notary procedure is subject to some general
and special conditions, which are expressly stated by law. As it is a non
contentious procedure, if any of these conditions is not met, the application for
divorce is rejected, by motivated decisions. The motivated refusal of the public
notary is not subject any means of attack.
