Considerations On Compensatory Provision

• Author: Roxana Maria Roba
• Pages: 227-232

CONSIDERATIONS ON COMPENSATORY PROVISION

Lecturer Roxana Maria ROBA1

Abstract

Regulated for the first time by the Civil Code from 2009, compensatory benefit seeks to compensate for a

significant imbalance that the divorce produces it in terms of the innocent husband's living conditions. The present study

aims to analyze the necessary conditions to obtain a compensatory benefit according to the current legislation, to make

a comparison with other institutions but also with the regulation from other legislation. The study uses the logical and

comparative method, analyzes the legal provisions currently in force, as well as the point of view o f the doctrine and the

solutions derived from the judicial practice. The conclusions are in the direction of expressing concrete proposals to

amend the current regulations.

Keywords: compensatory benefit, divorce, imbalance, compensation.

JEL Classification: K36

1. Introductory considerations

Once the marriage has been dissolved, the obligation of solidarity and material support ceases.

However, in some cases, these obligations are replaced by others, such as the maintenance obligation

between former spouses or the compensatory benefit.

The compensation benefit institution is currently regulated in Art. 390-395 of the Civil Code2.

It enables the applicant spouse to benefit from a benefit to compensate, as far as possible, for a

significant imbalance that divorce would cause him in his living conditions. In order to obtain the

compensatory benefit it is necessary that the marriage is at least 20 years old and that the divorce

should be based on the sole fault of the defendant spouse.

Regulation is not an original one in our legislation, inspired by the provisions of art. 270-278

of the French Civil Code and the provisions of Art. 427- art. 430 of the Civil Code of the Province of

Quebec3.

As regards the legal nature, the compensatory benefit has a mixed character: indemnification

and food4. Based on the principle of equity, it has a variable character, depending on the debtor's

needs as well as the means of the creditor being also inscrutable and unable to form the object of the

compensation5.

Recovery of the right to compensatory benefit can only take place with divorce, the intention

of the legislator being to limit the post-divorce litigation between former spouses and the temptation

of the baffling attempts of one or the other6.

The study aims to make a critical analysis of how the compensatory benefit institution is

regulated, highlighting the legislative loopholes that could give rise to controversial solutions in

judicial practice. Following the views expressed in jurisprudence and doctrine, using the logical and

comparative method, the study proposes concrete solutions to modify the provisions currently in

force.

1 Roxana Maria Roba - Faculty of Law and Economics; University of Medicine, Pharmacy, Sciences and Technology of Târgu Mureș,

Romania, office@avocatroxanaroba.ro.

2 Law no. 287/2009 on the Civil Code published in the Official Gazette no. 409/10 June 2011 and republished in the Official Gazette

no. 505 of July 15, 2011.

3 See Emese Florian, Dreptul familiei. Căsătoria. Regimuri matrimoniale. Filiația, CH Beck Publishing House, Bucharest, 2016, p.

336.

4 See Jean Carbonnier, Droit civil, volume I, Quadrige Publishing House, 2004, p. 320.

5 See Philippe Malaurie, Hugues Fulchiron, La famille, Défrenois Publishing House, Paris, 2006, p. 321.

6 Emese Florian, Prestaia compensatorie – post scriptum la albumul de familie, „Studii i cercetri juridice” no. 4/2013, p. 410.