The Marriage of Convenience and Some Effects on the Regime of Foreigners in Romania
| Author | Gabriela Lupsan, PhD |
| Position | Associate Professor. "Danubius" University of Galati |
| Pages | 107-120 |
Page 107
After Romania's EU integration, the interest in knowing the Romanian laws by aliens from some non-EU states has increased considerably, in order to use the legal channels to achieve unlawful purpose, such as migration, for themselves or for their community1. (Sava, 2005, pp. 283-295)Page 108
Regardless the factors that determine the migration cases (famine, armed conflicts, natural disasters, religious restrictions), migration of foreign citizens in Romania, which is used as a target or transition country, produces a range of negative consequences, such as: engaging in illegal activities or work illegally at various firms, a source of conflict and offence, the opportunity to infiltrate and operate various terrorist groups, assuming significant expenditure for the national budget in order to return to aliens to their countries or for housing, maintenance, social assistance and integration of foreigners who have acquired some form of protection in Romania. (Rotaru, 2008, p. 27)
The study aims at analyzing the legal mechanisms through which fictional marriage may be a "springboard" for obtaining the legal right to stay in Romania, not with the purpose to start a family, but to infringe the national security, which would lead to fueling immigration by well-known processes: family reunification, mixed marriages, birth of children, inviting relatives, adoption etc. (Dewar, 2000)
The theoretical scheme to which the alien appeals, corresponds with all the characteristics of simulation, as it was described in literature: through a public document achieved by marriage, it creates an appearance that is contradicted by the simulator agreement which takes the form of a secret act made between the prospective spouses, all at the service of best foreigner's interests, in order to obtain the right of residence in Romania and, hence, other legal effects and thus other targets.
Taking into consideration the following definition of simulation from literature: "the single legal transaction that creates a unconformable appearance by concluding two legal acts, a public one and a mendacious one, whose effects are removed or modified, totally or partially, by other which is secret and true, which contains implicitly or explicitly the agreement of the parties to simulate" (92), we can say that simulation is a means, authorized or sanctioned by law, that is available to the legal issues, that leads to one of the most diverse purposes, which may be fair and mostly with false pretences.Page 109
In order to conceal reality, by means of simulation the participants, through a valid legal act, aim at creating voluntarily a misleading appearance2, other than a legal fiction, which is the exclusive work of the legislator (Deleanu, 2005, pp. 30-32). A separate legal figure, with its own structure and a specific legal regime, the simulation has often a double legal valence, being a way of creating the appearance in law through the agreement of will, but also a means to achieve fraud law.
Exclusively for third parties, the simulation excludes good-faith. Participants in the simulation are agreed to lie the others, which "serves" a deceiving appearance, maintained throughout the interim period of simulation, that is from the moment of rising the concerted legal deceit until its discovery through the action in simulation (for example, in our case, finding a marriage of convenience). (Doe, 2007, p. 183)
Mostly covered by mandatory rules, the legal documents in family law can know various forms of simulation, doctrine and especially the jurisprudence which retained some of them, such as the fictional marriage, the fictitious recognition of paternity3, fictitious adoption. (Ionascu et ali., 1980, p. 66) (Avram, 2001, p. 69) (Filipescu, 2002, pp. 142-154) (Hârceagă, 2009, pp. 110-116)
Referring to the legal act of marriage, the legislation, the doctrine and sometimes the jurisprudence gives us a wide range of legal categories somewhat similar, but with a meaning and, especially, different legal consequences to each of them: the clandestine marriage, secret marriage, fictional marriage, simulated marriage, marriage of convenience and putative marriage. (Bacaci et ali, 2005, p. 126-129, 133) (Lupacu, 2007, p. 128-130) (Corhan, 2009, p. 171- 174).
Regarding our study, we chose the concept of "marriage of convenience", within the meaning of Government Emergency Ordinance no. 194 of December 12th, 2002 onPage 110foreigners' regime in Romania4, which is defined in article 2 point l): "The marriage is concluded with the sole purpose of circumventing the conditions of entering and staying of foreigners and to obtain the right of residence in Romania".
After analyzing the definition given by the legislator, the marriage of convenience is a case for applying simulation, being fulfilled those conditions of the existence of fictional marriage recognized in the specialized literature, namely: the legal marriage concluded having other purposes none included the foundation of a family; the marriage aims solely at obtaining legal consequences. (Baias, 2003, p. 263)
The courts have sanctioned by absolute nullity the marriage concluded in the purpose of circumvention from the offender's criminal liability for rape, obtaining a bank loan to purchase a home for young married couples, the acquisition of a testamentary trust, under the condition of proving the quality of married person, obtaining a parish by a priest, acquire Romanian citizenship. The same penalty was applied to new marriages concluded in Romania between the same persons, who were already married in Greece, the purpose being to acquire the wife's surname as a result of a new marriage, in order to have a new identity, in its attempt to avoid the banishment to travel in the Schengen area.5 (Florian, 2003, p. 61) (Moloman, 2009, p. 211)
Starting from general to particular, the marriage of convenience concludes for the sake of appearance, between an alien and a Romanian citizen, without corresponding to real personal and financial relationships that should exist between them, the aim being to obtain marriage side effects, which otherwise in the absence of the legal act of marriage, the alien could not achieve.
Simulation and good faith are mutually exclusive in the case of marriage of convenience, the future spouses know that through marriage certificate they will create just the appearance of a marriage which would led to a legal and juridical situation. Simulation is the instrument for creating the appearance of a married person for the foreigner, who may receive only in such manner the legal effects of the institution of marriage provided by the Romanian law.Page 111
Marriage of convenience is ascertained by the interview officers6 and it produces legal consequences in staying regime of foreigners in Romania. Thus, there are cases where a foreigner cannot be removed from the territory of Romania because it is married to a Romanian citizen and it is not a marriage of convenience.
Based on data resulted from interviews conducted separately and with the husbands, from the analysis of submitted documents, the statements' assessment of a third parties and controls in the conjugal home, the officer's interview establishes if in that case there are items listed by the legislator in Article 63 paragraph (2) of Government Emergency Ordinance no. 194/2002 on aliens in Romania7, according to which a marriage may be considered of convenience or not. These statutory factors are: no matrimonial cohabitation, wives were not known before marriage, lack of effective contributions to the obligations arising from marriage, spouses do not speak a language understood by both, there are data that previously one of the spouses concluded a marriage of convenience, spouses are inconsistent in declaring personal data, the circumstances under which they have met or other relevant information about them; the marriage was conditioned on a payment of a sum of money between spouses, except for sums paid as dowry. (Chelaru, 2003, pp. 203- 206)
After finding a marriage of convenience, the Romanian Immigration Office determines the refusal to approve the application for the extension of the temporary stay right for family reunification made by a foreigner that is married to a Romanian citizen and hence the emission of returning decision from the Romanian territory.
Regarding the burden of proving an unresolved marriage in the purpose of building a family, it is up to the foreigner, who can suggest any evidence in the process of cancelling the decision of returning and approving the application for extension the temporary stay right; the court is required to assess and evaluate the evidence material, according to the same legal criteria laid down by article 64 (2) of the Ordinance.
Along with the above stated situation, the findings of a marriage of convenience may be subject to a legal action for absolute nullity of marriage, promoted by any interested person.Page 112
Knowing the Romanian law, it allows foreigners to build up a plan...
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