The divorce by the public notary. Proceedings

• Author: Nicusor Craciun
• Position: Law Department, Transilvania University of Brasov
• Pages: 189-196

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 7 (56) No. 2 - 2014

THE DIVORCE BY THE PUBLIC NOTARY.

PROCEEDINGS

Nicuşor CRĂCIUN1

Abstract: The legal institution of divorce is the legal method by which a

marriage is terminated. The topic of discussion for the present article is the

conventional divorce, which is characterized by the fact that the dissolution

of marriage is exclusively the result of the consensual will of the two spouses.

Key words: amicable divorce, marriage, the public notary, spouses.

1 Law Department, Transilvania University of Braşov.

1. Introduction

De lege lata, marriage is dissolved by

divorce.

If divorce for unfounded reasons was

forbidden during the communist period,

after the Revolution, the possibility to

terminate marriage by mutual consent

appeared.

The enactment of Law no. 202/2010 on

measures to accelerate the settlement of

court trials and, subsequently, the enactment

of the new Civil Code has given the

opportunity to spouses to divorce in a non-

contentious framework, by administrative

means and notary procedure.

The New Civil Code establishes the

amicable divorce.

This divorce can be done either judicially,

administratively or by a notary.

Unlike divorce proceedings by

administrative means, starting with October

1, 2011, the notarial divorce is done in two

forms: the divorce without minor children

and the divorce when the spouses have

minor children.

The divorce by notary bri ngs in

undeniable advantages, as it is a much more

rapid form of marriage dissolution by the

consent of both spouses.

This is an alternative way to solve

conflicts, helping to decongest the judiciary.

The legal basis of the proceedings

regarding the divorce by public notary is the

Civil Code - art. 375-378, and Law.

36/1995, The Public Notaries Law and of

the notarial activities - art. 136.

According to art. 375, para. 1 Civil Code

"If the spouses agree to divorce and have no

minor children, born in wedlock, out of

wedlock or adopted, the registrar or the

notary public from the place where the

marriage took place or the last family

residence can ascertain the dissolution of

marriage by agreement between the spouses,

issuing a certificate of divorce according to

law. "

The quoted text states two conditions:

1) the spouses' agreement for the

dissolution of marriage;

2) no minor children, born in

wedlock, out of wedlock or ad opted.

In the event of the dissolution of marriage

by a notary, the condition regarding the

agreement of both spouses is more

rigorously taken into consideration, in the