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].