Legal marriage versus religious marriage act in light of the new regulations of the civil code

• Author: Laura Cetean-Voiculescu - Ada Hurbean
• Position: Lecturer Ph.D. University '1 Decembrie 1918' Alba Iulia, Law Department - Lecturer Ph.D. University '1 Decembrie 1918' Alba Iulia, Law Department
• Pages: 177-180

LEGAL MARRIAGE VERSUS RELIGIOUS MARRIAGE ACT IN LIGHT OF THE NEW

REGULATIONS OF THE CIVIL CODE

Laura Cetean-Voiculescu

Ada Hurbean

Abstract

In Romania, in a ccordance with the curr ent legislation, in order for a marria ge to be legally valid it

must be completed by a sta te authority, a s an official act. Therefore, the marriage has a civil cha racter. But the

religious marr iage, given that we are a Christia n people, is permitted, with the only condition of subsidiar y in

relation to civil marria ge.

Keywords: registry marria ge, legal marria ge, religious marria ge, engagement.

Introduction

This paper does not propose a presentation and a thorough a nalysis of legislative cha nges, numerous

and controversial, regarding marriage, changes recently introduced by the a ppearance of the new Civil Code

entered into force o n 1 October 2011, but only legal reference to the main characters of the lega l act of civil

marria ge and the celebra tion of religious marria ge, not only permitted by law but also a pproved by civil society,

due to the fact tha t the Romanian people is Chr istian. The very first provision of the new Civil Code refers to the

religious marr iage, which complement the provisions stipulated in the Con stitution from 2003.

Short term considerations relating to marriage

The term “marriage” has several meanings. On one hand, marriage is the legal act that is c oncluded by

those who want to get married, a core institution of the human socie ty or a legal situation, in principle considered

permanent by the married ones. Even though the Romanian legal doctrine formulated many definitions, most of

the authors retained the essence as follows: the specific element of the marriage is communit y life.

The marriage is basically designed to e ndure, for the spouses, all of their lives. By celebrating a

marriage, a man and a woman are founding a living co mmunion which is based on feelings o f affection,

friendship, trust and understanding, which implies the fact that future spouses have to think deepl y about

marriage about to be concluded so that it will correspond to its mission.

In the Family Cod e regulations now repealed by the new Civil Code provisions, there is no legal

definition of marriage, but the legal characters of the institution can be easily detached from its regulations. Now

the legal situa tion is similar, the new Civil Code does not provide such a definition, but there are articles on its

legal character, substantive and formal conditions for the marriage ceremony, some d ispositions related to

engagement, divorce, termination or dissolution etc.

Aspects of marriage characters with special regard to the civil one

First, marriage is between a man and a woman. Even if the character of marriage existed in the old

regulations co ntained in the Family Code, the current regulator insists on several pieces of legislation on this

issue, emphasizing that marriage ca n only be concluded bet ween persons of the oppo site sex, excluding same-

sex marriages. Given the mentality and traditions of the Ro manian people we believe that the legislation is

appropriate in this context, even if we consider the increasing liberalization of the same-sex marriages

throughout Europe and internationally.

Thus, according to the art. 258, ¶ 4 of the Civil Code, "according to this co de, spouses mean a male and

a female joined in marriage," according to the art. 259, "the marriage is the freely consented union between a

man and a woman, done according to law" and according to art. 271, " marriage is concluded between a man and

woman by free and persona l consent." Furthermore, the civil institution of engagement can only be completed

between a man and a woman, according to the art. 266, ¶ 5.

Second, marriage is freely accepted. Accord ing to the first paragraph of art. 258, the fa mily is based on

marriage freely consented by spouses, a nd according to the art. 272 the marriage is officiated by the free consent

of the future spouses. Therefore, marriage is officiated by non-imposed consent of the future spouses, their free

expression, based on love, is not restricted in any way by any other consideration, and above all material

considerations1.

 Lecturer Ph.D. University "1 Decembrie 1918" Alba Iulia, Law Department, e-mail:lauravoiculescu@yahoo.com.

 Lecturer Ph.D. University "1 Decembrie 1918" Alba Iulia, Law Department, e-mail:adahro@yahoo.com.

1 Laura Cetean-Voiculescu, Adam Drgoi, Curs teoretic şi aplicativ de Dreptul familiei, Agora University Press, Oradea, 2007, p. 40.