Controversial law issues in the enforcement of the new legal provisions in family law

• Author: Dan Lupa?cu
• Position: PhD, Faculty of Law, ?Nicolae Titulescu' University of Bucharest (e-mail: prof.danlupascu@gmail.com).
• Pages: 7-13

LESIJ NO. XXIII, VOL. 1/2016

CONTROVERSIAL LAW ISSUES IN THE ENFORCEM ENT OF THE

NEW LEGAL PROVISIONS IN FAMILY LAW

Dan LUPACU

Abstract

The r elatively short per iod of the new Romainian Civil Code implementation highlights the

existence of some controversial law issues regarding the legal provisions contained in Book II, entitled

“About family”.

Apart from the theoretical disputes, there are also court decisions that contain different solutions

in the enforcement of the same legal provisions.

Controversy exists not only in relation to the newly introduced institutions in our legal landscape,

but also r egarding the ones taken over from the old regulation, in stitutions that have undergone some

changes.

The examples ar e most varied and they do not bypass almost a ny matter. Thus, we signal th e

presence o f different inter pretations of r egulations rega rding: enga gement, marr iage, divorce,

parenta ge, adoption, the legal duty to maintain, the parenta l authority, etc.

The present study highlights such controversy’s by presenting the views expressed and the

arguments invoked in their support and a lso some propositions of Ferenda Law.

Keywords: Romainian Civil Code, controversial law issues, engagement, divorce, filiation.

1. Introduction

Conducted during a relatively short

time period , the considerab le effort of

“modernizing” ro manian legislation and

aligning with the international regulatory

developments is somewhat “shadowed” by

the existence of some legislative sol utions

susceptible of different interpretations or by

the absence of provision.

Thus, reffering only to the provisions

of the Civil Code regarding family

relationships, we find that there are

numerous discrepancies in the speciality

literature and/or judicial practice. Their

existence can be easily noticed from the

critical content analysis in terms of legal

logic of the various regulations. At the same

time, in the process of law enforcement, in

 PhD, Faculty of Law, „Nicolae Titulescu” University of Bucharest (e-mail: prof.danlupascu@gmail.com).

many cases, the guardianship courts have

ruled differently over the same law issues. In

fine, the spec ialized literature of almost 5

years o f implementing the Civil Code

revealed different views over the same law

issues.

And we could say that this is just the

beginning…

The present study highlights only a

part of these controversies in matters, such

as: engagement, nullity and dissolution of

marriage, filiation and legal duty to

maintain. Their presentation shows not only

theoretical interest, but also significant

practical consquences, because from the

meaning of a legal provision depends the

outcome of a specific case, or in the event of

a litigation, or in any other assumptions of

enforcing a legal rule.