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.

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