Some considerations on the reflection of the compensatory benefits in court judgments
| Author | Ioana Nicolae |
| Position | Transilvania University of Brasov, Faculty of Law |
| Pages | 16-23 |
16 IOANA NICOLAE
SOME CONSIDERATIONS ON THE REFLECTION OF THE
COMPENSATORY BENEFITS IN COURT JUDGMENTS
Prof. univ. Ioana Nicolae, Ph.D.*
Transilvania University of Braşov, Faculty of Law
Abstract:
The new Civil Code, in addition to other innovations of the civil legislation, also introduced the
compensatory benefits between the former spouses. The emergence of this new right has not escaped
unnoticed by the spouses who call for the dissolution of marriage by judicial process; therefore the
compensatory benefits can be found in the judicial decisions delivered after the entry into force of the
new Civil Code. The way the litigants choose to judicially enhance this right, is not always the most
adequate; therefore, although the innocent spouse could have benefited from compensatory benefits,
the practice has proved that being entitled to the coverage of the significant imbalance produced by
the divorce in one’s living conditions, is not always equivalent to the admission of such an
application in Court.
Keywords: private law, civil law, compensatory benefits, jurisprudence.
The entry into force of the new Civil Code1 has introduced in the Romanian
legal landscape, a new institution – the compensatory benefit between the former
spouses – which did not previously exist in our law; but which is regulated, yet in
different ways, in the French Civil Code (art. 270 and the following), as well as in
the Civil Code of Québec.
Our Civil Code followed the model of the French Civil Code; the proposed
texts being nevertheless much more synthetic than those in the model. Likewise,
unlike the Romanian legislature, which established restrictive conditions for
granting the compensatory benefits, the French legislature regulated this
institution, regardless of the divorce fault and cause; therefore, any compensatory
benefit is meant to compensate, as much as possible, the disparity provoked by the
dissolution of marriage in the spouses’ living conditions, due to the termination of
the obligation of mutual support between spouses2.
* E-mail: ioanan1977@yahoo.com.
1 Law no. 287 from July 17th, 2009 regarding the Civil Code, published in Romania’s Official Gazette,
no. 511 from July 24th, 2009, with subsequent modifications and completions.
2 See art. 270, French Civil Code.
Law Review vol. II, issue 2, Jul
y
-December 2015, p. 16-23
Some considerations on the reflection of the compensatory benefits 17
The compensatory benefit introduced in this way, within our law, can be
allowed to the plaintiff spouse3 if the divorce is delivered out of the defendant
spouse’s exclusive fault, in order to cover, as far as possible, a significant imbalance
possibly caused in the claimant’s living conditions. This, according to art. 390
par. (2) Civ. Code, can only be granted in case the marriage had lasted for at least
20 years; and according to art. 391 par. (1) Civil Code, can only be claimed once
with the dissolution of marriage, either by formulating, in this respect, a
supplementary application, in the framework of the divorce proceedings, or
incidentally, by counterclaim. The legislator has unequivocally stipulated that the
compensatory benefits shall be claimed once with the divorce, constituting, in
essence, an effect of the dissolution of marriage, which means that it cannot be
claimed either during the marriage of the parts, even if the spouses’ facto
separation occurred; or subsequently to the moment of marriage dissolution, by
final court decision. Thus, in terms of the point at which the compensatory benefit
can be asked, this is given by the moment of the formulation of the divorce action
(principally or incidentally, where applicable).
The emergence of this new right in the legal landscape has not escaped
unnoticed by the spouses who claim the dissolution of marriage by judicial
process; therefore, in addition to other innovations brought to the civil legislation,
the compensatory benefit can be also found in the court judgments delivered after
the entry into force of the new Civil Code.
Out of the jurisprudential material, we selected several such decisions,
precisely in order to illustrate the way in which the new juridical instrument is
being employed in practice, by some litigants, in an attempt to cover the significant
imbalance that will be produced by the divorce in the living conditions of the
claimant to the payment of such compensation.
In a first case4, the defendant, by counterclaim, claimed that the plaintiff
should pay a compensatory benefit in kind, in the form of a lifelong usufruct upon
the share of ½ of an apartment – common property, acquired under the rule of the
family Code – which constituted the most important asset of the parties.
On one hand, the Civil Code, as regards the form of the compensatory benefit,
stipulates, at art. 392, that “it may be established either in money, as an aggregate
amount or as annuities; or in kind, as usufruct upon movable or immovable
property, belonging to the debtor”; and the usufruct can be constituted “either for
the lifetime of the claimant to the compensatory benefit, or for a shorter period,
which shall be established by the divorce judgment”. On the other hand, as regards
3 The collocation “plaintiff spouse” is considering both the titular of the main divorce
proceedings, and the defendant in the main divorce proceedings, the titular of the counterclaim. For
further details, see G.C. Freniu, Comentariile Codului civil: familia [Commentaries to the Civil Code:
Family], Bucharest: Hamangiu Publishing House, 2012, p. 341.
4 Court of Bacu, civil judgment no. 4382 from 9.05.2012 [portal.just.ro – accessed at the date of
7.10.2015, time 13: 45].
18 IOANA NICOLAE
the object of the usufruct, art. 706 Civ. Code, stipulates that it may constitute any
movable or immovable, tangible or intangible assets, including a patrimony, a
universitas facti or a share thereof.
Unlike the common property in shares, as the ideal share of the real estate on
which the defendant wanted the establishment of a lifelong-usufruct right, could
not be determined, given that the spouses’ condominium-property right upon the
assets acquired during marriage, assumes the asset belonging to both spouses,
without their having an established ideal share of the property right thereupon, the
Court could not have admitted that counterclaim, even if the defendant had
proved a significant imbalance, and the marriage of at least 20 years had been
dissolved out of the plaintiff’s exclusive fault.
To resort to the compensatory benefit, transforming it from a legal instrument
capable of covering, as far as possible, a significant imbalance produced by the
dissolution of marriage through divorce, in the living conditions of the claimant to
compensation, into a legal instrument aimed at rendering unavailable the real
estate – dwelling – common property, throughout the defendant’s life5, with a
view to its not being subjected to partition, constitutes, moreover, a
misappropriation of this institution from the purpose for which it was introduced
by the Romanian legislator; consequently, the Court rightly dismissed the
counterclaim to compensatory benefit.
As results from the civil judgment delivered in that case, the defendant
claimed that the plaintiff should pay a compensatory benefit in kind, as lifelong
usufruct, on the ground that the plaintiff lacked the financial means to ensure the
payment of a monthly amount; and that the divorce would have consecrated the
termination of the matrimonial regime; being therefore unable to commit in a legal
partition-process, with all the consequences it entails.
The wife’s choice to request a compensatory benefit in kind, as an usufruct,
proved to be inadequate in relation to the legal standard that regulates the object of
the usufruct right, as well as the to the legal regime of the commons acquired
during marriage, in the sense that, if a real estate is a common good, the usufruct
upon it cannot be granted by way of compensatory benefit6. Furthermore, the
plaintiff had agreed to pay his wife a life annuity amounting to ¼ of his retirement
benefit, which the defendant had refused, an aspect that only strengthened the
conviction of the Court that there were not the material difficulties, those which
had determined the defendant’s option.
5 This seems to be a recurrent theme in the divorce proceedings; for instance, in another case, the
defendant stated in contestation that she did not agree to the divorce, as she would not sell the
apartment where they lived – see C.A. Suceava, judgment no. 993 from 18.09.2013 [portal.just.ro –
accessed at the date of 7.10.2015, time 13: 45].
6 See Law Court of Sector 2, civil judgment no. 5386 din 18.04.2012, quoted by M. Avram, Drept
civil: familia [Civil Law: Family], Bucharest: Hamangiu Publishing House, 2013, p. 147, n. 2.
Some considerations on the reflection of the compensatory benefits 19
Under such circumstances, when there is not a major change in material terms,
the one which determines the request of a compensatory benefit, even if the
spouses had been co-owners of the respective apartment, each of them holding a
share of ½ of the ownership, the ideal shares being therefore established, the Court
still could not admit the counterclaim, although the marriage of the parts dissolved
out of the plaintiff’s exclusive fault.
Although the dissolution of a marriage that has lasted for at least 20 de years,
out of exclusive fault of one spouse, entitles the other one to the compensatory
benefit, if the divorce determines a significant imbalance in the living conditions of
the claimant to the compensatory benefit, the admission of a claim with this object
shall be still conditional on verifying the existence of the significant-imbalance
condition.
Thus, in a case7, although all conditions for granting the compensatory benefit
were apparently fulfilled, the Court dismissed the plaintiff’s claim, because of her
omission to motivate in what the significant imbalance consists.
In motivating the claim whereby she requested the dissolution of marriage, out
of the defendant’s exclusive fault, the plaintiff emphasized that the defendant, out
of jealousy, had not allowed her to work, for which reason, once having reached
old age, when she was no longer capable of performing lucrative activities, she
could not benefit from any retirement benefit, having no income.
Although following the evidence adduced, the Court ordered the dissolution
of marriage, out of the defendant’s exclusive fault, as regards the claim for the
defendant to pay a compensatory benefit as a life annuity, it seemed groundless, as
the Court could not verify the existence of the significant-imbalance condition.
According to the civil judgment delivered in this legal cause, the plaintiff did
not motivate what constituted the imbalance, but she only made a simple
statement in the sense that, at that moment, she was no longer capable of
conducting lucrative activities. So that he Court were able to verify the existence of
the significant-imbalance condition, she should have mentioned that “during
marriage, she was provided with living conditions that proposed expenditure
amounting to X lei, and she had a much smaller income”.
Thus, as no evidence was adduced by the plaintiff – evidence meant to prove,
in concreto, the deterioration of her living conditions, respectively the income and
the expenditure of the parts during marriage, their amount, as well as the income
she would have after the dissolution of the marriage, the Court dismissed the her
claim to be granted the compensatory benefit, as unfounded.
Therefore, in order to benefit from this instrument meant to compensate, as far
as possible, the disparity provoked in the innocent spouse’s living conditions, due
to the termination of the obligation of mutual support between spouses, the
7 Court of Constana, civil judgment no. 4145 from 8.04.2015 [portal.just.ro – accessed at the date
of 7.10.2015, time 13: 45].
20 IOANA NICOLAE
litigants who are going to avail themselves of the new institution of the
compensatory benefit will not only have to obtain the dissolution of marriage, out
of the other spouse’s exclusive fault, but will also have to adduce evidence
whereby the significant imbalance might be quantified.
Our Civil Code illustratively enumerates the criteria for establishing the
compensatory benefit, par. (2) of art. 391; and stipulates that, in establishing the
compensatory benefit, there will be taken into account both the resources of the
spouse who claims it, and the means of the other spouse; the effects exerted by the
termination of the matrimonial regime; as well as any other predictable
circumstances likely to modify them, such as the spouses’ age and health, the
contribution to raising the minor children, which each spouse has had so far and
will have henceforth, the professional training, the possibility to conduct a
revenue-producing activity, and the like. The formulation of the indicated legal
text shows that the judge seized to such a claim, can likewise consider any other
predictable circumstances that are grounds for allowing the compensatory benefit,
the enumeration in the text not being, in this sense, limiting. As it was justly
emphasized in the doctrine8, “the compensatory benefit results not only from the
arithmetical comparison of each spouse’s resources; in its granting, there being also
necessary to consider the repartition of the role had by each of them in their
common life, as well as the choices made in common, which might prove harmful
to the not guilty spouse, either at the moment of the divorce, or subsequently.”
These criteria will be considered by the Court, when ruling upon the scope of
the compensatory benefit, with a view to restoring “an equilibrium in terms of the
innocent spouse’s living conditions, so as to alleviate the trauma (s)he might
experience, after a marriage of at least 20 years, dissolved without his/her fault
and consent”.9 In terms of the condition for the duration of the marriage to be of at
least 20 years, it is worth mentioning that this term does not require to be fulfilled
on the date of the Court notification for divorce, but the term must be fulfilled until
the date of the judgment.
Approached from this perspective, of the trauma caused by the deterioration
of his/her de living conditions, the compensatory benefit might be granted only if
8 M.M. Oprescu, M.A. Oprescu, Marius Şcheaua, Noul Cod Civil comentat şi adnotat. Despre familie
[The New Civil Code Commented and Annotated: About Family], Bucharest: Rosetti Publishing House,
2015, p.266.
9 C.-M. Crciunescu, Efectele divorului cu privire la raporturile dintre soi, precum şi dintre prini şi
copiii lor minori [Effects of the Divorce in terms of the Relations between Spouses, as well as between Parents
and Their Minor Children], p. 6. [Paper presented on the occasion of the Conference in Civil-Law
matters, organized at NATIONAL INSTITUTE FOR MAGISTRACY (INM), between June 13th-14th,
2013, in the framework of the Swill-Romanian project “Asisten pentru consolidarea capacitii
instituionale în domeniul formrii judectorilor şi procurorilor pentru aplicarea noilor legi”
[Assistance for Strengthening the Institutional Capacity in the field of Judge- and Prosecutor-Training,
for the Application of the New Laws], National Institute for Magistracy (INM)-lex.ro – accessed at the
date of 1.10.2015, time 11:58].
Some considerations on the reflection of the compensatory benefits 21
and in so far as the living conditions that the innocent spouse benefited previously
to the divorce, were to be significantly modified, following the dissolution of
marriage, in such a way that (s)he might be traumatized.
This trauma supposed by the legislator to arise when a major modifications of
the living conditions occurs, in such a way that the compensatory-benefit right
holder need not provide evidence for this trauma, but only for the significant
imbalance determined by the divorce in his/her living conditions. The
compensatory benefit cannot be cumulated with the maintenance allowed granted
under the art. 389; yet it is possible to cumulate with the compensations regulated
in art. 388. The maintenance allowance referred to by the text of the art. 389
concerns the divorced spouse’s right to receive it, if (s)he is in need, due to a labour
incapacity occurred either before or during the marriage. The maintenance can be
likewise allowed if the labour incapacity occurs within a year from the dissolution
of marriage; yet the legislator conditions its allowance on the labour incapacity
having been caused by circumstances related to the marriage. The interdiction to
cumulate the maintenance allowance with the compensatory benefit, envisages
that both of them aim at compensating the imbalance produced by the divorce in
the life of the spouse who claims their payment. Notwithstanding, we must not
lose sight of the fact that we are dealing with different institutions, not only in
terms of regulation, but also in legal terms. The text of the art. 388 shows that,
separately from the compensatory benefit, the innocent spouse who suffers
damage by the dissolution of marriage, can claim for the culpable spouse to bring
him/her compensations. There is about the compensation for material or moral
damages caused to the innocent spouse, by the dissolution of the marriage.
With a view to ensuring the divorced innocent spouse, a life as close as
possible to the one during marriage, the Court will only have to compare his/her
living conditions before and after the dissolution of marriage, respectively the
extent to which the innocent spouse’s life, at least in material terms, will undergo a
major change; being therefore compelled to apply other standards, due to the
lesser available means, after the dissolution of marriage.
The Civil Code, in art. 325 stipulates, on one hand, that the spouses are obliged
to provide each other with mutual material support; and, on the other hand, that
the spouses are obliged to contribute, in relation to the means of each of them, to
the expenditure incurred during their marriage. Thus, it may happen that, during
marriage, the innocent spouse lead a comfortable and carefree life, as the incomes
of the spouse out of whose exclusive fault, the divorce was delivered, had always
been clearly superior to those of the innocent spouse10. In such a situation, the
duration of the marriage, of over 20 years, and the absence of fault in its
dissolution, shall entitle the innocent spouse to the compensatory benefit, even if
10 Also see in this respect Court of Botoşani, decision no. 161A din 9.09.2013 [portal.just.ro –
accessed at the date of 7.10.2015, time 13: 45].
22 IOANA NICOLAE
the assets and incomes that ensured him/her higher living standards within
wedlock, constituted the other spouse’s own property.
Practically, the Court shall have to establish if and to what extent the innocent
spouse’s incomes and own property can ensure him/her, after the dissolution of
marriage through divorce, a life as close as possible to the one during wedlock; the
Romanian legislator imposing nevertheless the condition of a “significant”
imbalance, as a prerequisite for granting the compensatory benefit11.
As we have more examples of judicial practice, in matters of compensatory
benefit, it will be interesting to follow what interpretation will jurisprudence give
to the significant character of the imbalance, in the innocent spouse’s life
conditions, respectively which criteria will be used in order to determine where the
wedlock comfort ends and where the trauma caused by the deterioration of
his/her life conditions begins.
In this way, despite the restrictive conditions upon its allowance, the
compensatory benefit is a welcome tool, rendered available to the innocent spouse,
whose marriage is dissolved by divorce after at least 20 years and without his fault
Nevertheless, as shown in the presented examples, the practice proves that to
be entitled to the coverage of the significant imbalance produced by the divorce in
one’s living conditions, is not always equivalent to the admission of such a claim.
In conclusion, we can only say that the vigilance of the judge who ensures the
application of the law, in its letter and spirit, as well as the diligence of the lawyers
in efficiently defending the interests of the parties, constitute the prerequisites for
this new institution to fulfill the purpose for which it has been introduced by the
Romanian legislator, respectively the alleviation of the significant imbalance likely
to emerge as a consequence of the divorce, in the innocent spouse’s life conditions.
References
[1] Gabriela Cristina Freniu, Comentariile Codului civil: familia [Commentaries to the Civil
Code], Bucharest: Hamangiu Publishing House, 2012.
[2] Court of Bacu, civil judgment no. 4382 from 9.05.2012 [portal.just.ro – accessed at
the date of 7.10.2015, time 13: 45].
[3] Court of Appeal Suceava, decision no. 993 from 18.09.2013 [portal.just.ro – accessed
at the date of 7.10.2015, time 13: 45].
[4] Marieta Avram, Drept civil: familia [Civil Law: Family], Bucharest: Hamangiu
Publishing House, 2013.
11 The French legislation imposes no condition as regards the importance of the imbalance, in
such a way that a small difference between the spouses’ incomes does not constitute an impediment
to the allowance of the compensatory benefit. For further details, see E. Fortis, Divorce (conséquences),
Encyclopédie juridique Dalloz: Répertoire de droit civil, September 2011, p. 47 (updated June 2015)
[dalloz-avocats.fr– accessed at the date of 28.09.2015, time 9:37].
Some considerations on the reflection of the compensatory benefits 23
[5] Court of Constana, civil judgment no. 4145 from 8.04.2015 [portal.just.ro accessed
at the date of 7.10.2015, time 13: 45].
[6] Mugurel Marius Oprescu, Mihaela Adriana Oprescu, Marius Şcheaua, Noul Cod
Civil comentat şi adnotat. Despre familie [The New Civil Code Commented and Annotated; About
Family], Bucharest: Rosetti Publishing House, 2015.
[7] Cristiana-Mihaela Crciunescu, Efectele divorului cu privire la raporturile dintre soi,
precum şi dintre prini şi copiii lor minori [Effects of the Divorce in terms of the Relations between
Spouses, as well as between Parents and Their Minor Children], [Paper presented on the
occasion of the conference in Civil-Legal matters, organized at INM, between June 13th-14th,
2013, within the Romanian-Swiss project “Asisten pentru consolidarea capacitii
instituionale în domeniul formrii judectorilor şi procurorilor pentru aplicarea noilor legi
[Assistance for Strengthening the Institutional Capacity in the field of Judge- and
Prosecutor-Training, for the Application of the New Laws]”, inm-lex.ro – accessed at the date of
1.10.2015, time 11:58].
[8] Court of Botoşani, judgment no. 161A din 9.09.2013 [portal.just.ro – accessed at the
date of 7.10.2015, time 13: 45].
[9] E. Fortis, Divorce (conséquences), Encyclopédie juridique Dalloz: Répertoire de droit
civil, September 2011, (Updated June 2015) [dalloz-avocats.fr – accessed at the date of
28.09.2015, time 9:37].
