Developments in the legal regulation of divorce. Legal and social issues

Author:Simona Petrina Gavrila
Position:Lecturer Ph.D. Universitatea 'Dunarea de Jos' University of Galati, Law Departament

If the traditional space has preserved family values in a fixed structure, both due to the uniform mentality of partners and to the general community principles which would restrict the life of married couples to certain points impossible to call into question or negotiate, the modern family has a new set of rules where the will of the parties comes before the will of parents, where the values of ... (see full summary)

Gavril Simona Petrina
If the traditional space ha s pr eserved family values in a fixed structure, both due to the uniform
mentality of partners a nd to the general co mmunity principles which would restr ict the life of marr ied couples to
certain points impossible to ca ll into question or negotiate, the modern family has a new set of r ules where the
will of the parties comes before the will of paren ts, where the values of the couple a re no longer the object of the
community appr oval and where the intimacy of the partners is no longer distur bed by the external influences of
public social Law Courts.
Key words: civil divorce, law’s evolution, religious divorce.
Most of the times, the current society has a legal aspect (formal punishment decided by a legitimate
institution for marita l union) and a religious aspect (formal punishment, thr ough sanctification, by a legitimate
religious institution for mar ital union). Star ting from this point, it is easy to make an association between
stability, mora lity, harmony a nd ba lance as elements consider ed when speaking about mar riage a nd its
opposite pole, that is insta bility, imbalance a nd even immorality, when speaking about divorce.
In order to understa nd the rela tion between a la ic and a religious divorce, one needs to descr ibe their
progress in time, star ting during the Middle Ages when all the medieval Romanian states were Chr istian and up
to present.
The evolution of divorce in the Romanian law system
The basis of the Romanian life during the Middle Ages period was the institution of marriage which, as
it results from the popular conception transmitted in time, was a mandatory element in the cycle of life. An
important requirement for marriage was the existence of do wry and its size, but when this was the only purpo se
of a marriage, the end could not be other than adultery or divorce.
One of the first written laws, since 1652, is Pravila cea mare2, also called Law amend ment, having a
profound religious nature which establishes, among others, the reasons for which a divorce may be requested, i.e.
“loss of judgment”3, in case of epilepsy, “in case of adultery”, “for sodomy”, “when the woman is pregnant with
another man and the husband was not aware of the fact beforehand”, “for insults and bad treatments” 4. The wife
is also granted the right to divorce if her husband is always drunk5.
In terms of family relationships, the end of feudalism and the begi nning o f modern Ro mania are both
characterized by the issuance and existence o f numerous written laws which have regulated in detail marriage
and divorce6.In Moldavia, the most important laws are the Manual of Donici and Calimach Code, with visible
modern influences7.
As for the divorce reasons, C alimach Code includes the following divorce reasons which a man could
invoke8: if the woman knew about a conspiracy against reign and paris h safety and she did not tell her husband
about it”, “if she proved to be too much of a whore or if she was condemned for murder”, “if she put her
husband’s life in danger or if she knew that others did so , she did not prevent him”, “if she relished on eating and
drinking or bathing together with other foreign people, without the approval of her husband”, if without his
approval, she shall eat in a house other than her parents’ or “if the husband casts her out without being guilty of
any of the above and without having parents or being far from them, she shall spend the night somewhere else”,
if without his approval and knowledge, she shall go vis iting around”, “if she causes the loss of conceived
children or kills them after being born”, “if she falls in alcohol consumption”.
The law o f Caragea provides special care to family institutions, treating them in the spirit of local and
Byzantine medieval traditions.9 The reasons for divorce stipulated in Caragea Code10 are as follows: “when made
Lecturer Ph.D. Universitatea „Dunrea de Jos” University of Galai, Law Departament,
1 Ioan Chelaru, Cstoria şi divorul. Aspecte juridice civile religioase şi de drept comparat, A92 Actami Publishing House, Iaşi, 2003 p. 25,
3 Alexandru Angelescu, N ebunia ca motiv de divor, Libertatea Presei Publishing House, Bucharest 1934, page 5. The interesting aspect of
this reason for divorce is the duration of the “illness”, i.e. to declare the divorce; the insanity should have lasted between 3 and 5 years. When
insanity was caused by a reason previous to the marriage, the divorce could be requested without requiring the expiry of the term.
4 Ioan Gr. Perieteanu, Excesele, cruzimile şi injuriile grave în materie de divor, Gutenberg Publishing House, Bucharest, 1902, p. 18, 19.
5 Alexandru Angelescu, Op. cit. p. 6.
6 Ioan Chelaru, Op. cit. p. 33.
7 Liviu P. Marcu, Istoria Dreptului Românesc, Lumina Lex Publishing House, Bucharest, 1997, p. 170.
8 Constantin P. Crasnaru, Divorul în Dreptul Roman şi în Dreptul civil Român, Concurena Publishing House, Bucharest, 1905, p. 33, 34.
9 Liviu P. Marcu, Op. cit. p. 170.

To continue reading