Matrimonial convention
Author | Ioana Nicolae |
Position | Law School, Law Department, Transylvania University Brasov, Romania |
Pages | 23-30 |
AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro
ISSN 1843-570X, E-ISSN 2067-7677
No. 3 (2014), pp. 23-30
23
MATRIMONIAL CONVENTION
I. Nicolae
Ioana Nicolae
Law School, Law Department
Transylvania University Brasov, Romania
ioanan1977@yahoo.com
Abstract: The current paper aims to contribute to enriching the knowledge of the judicial
instrument by which the spouses choose one of the matrimonial regimes acknowledged by the
Romanian Civil Code. In this research context, we wish to describe aspects regarding the
definition of this judicial notion, the necessary formal conditions to be met in order for it to be
valid and the effects it produces.
Key words: matrimonial convention, matrimonial regime, preciput clause
Introduction
The principle of the free matrimonial conventions stated by the present Romanian
Civil Code
1
grants each couple the possibility
2
to choose one of the matrimonial regimes
acknowledged by law, the legal community regime, the conventional community regime or the
separation of goods regime.
This regulation was highly appreciated by doctrine for being susceptible to the current
needs of modern society and for realigning our law with the European systems of law
3
.
Although the Family Code
4
has eliminated the possibility of conventionally establishing the
patrimonial relations between spouses, this sort of regulation existed in Romanian law, as the
matrimonial convention was, at some point, called “a marriage convention” and was
regulated in the Caragea Law, the Calimach Code and the Civil Code of 1864.
5
.
Doctrine references regarding the legal appearance of the matrimonial convention.
The notion of “matrimonial convention”
The matrimonial convention is also known as a “prenuptial agreement”, “matrimonial
contract”, “dowry paper”, “dowry formation”, “marriage contract”
6
.
1
Law no 287/2009, republished in the Official Bulletin no 505/15.07.2011, with changes and subsequent
additions
2
Speciality literature unanimously ackowledges that this is a choice and not an obligation of sposues to conclude
such a convention; in case there is no convention, the matri monial regime will be that of joint ownership; thus
we can state t hat the parties are obliged to conclude such a convention when they choose a different matimonial
regime (see Al. Bacaci, Vio rica –Claudia Dumitrache, Cristina Codrua Ha geanu, Family law. 7th edition. The
regulation of the new Civil Code., C.H. Beck Publishing House, Bucharest, 2012, p.77; Marieta Avram, Civil
law. Family, Hamangiu Publishing House, 2013, p.177, Cristina Mihaela Nicole scu-Comment of article in The
new Civil Code. Articles 1-2664, supervisors Fl. A. Baias, E. C helaru, R. Constantinovici, I. Macovei, C.H.
Beck Publishing House, 2012, p.349)
3
For the importance of unifying the matrimonial regimes on an European level, see I. L. Vlad, The p ublicity of
the matrimonial convention in UN member states in „Romanian Judicia l Opinions” no.7/2013, p.108-148
4
Law no 4/1953 rep ublished in „The Romanian Offic ial Bulletin” no 13/18.04. 1956, cuurently rescinded by
Law no 71/2011 for the coming into force of Law no 287/2009 regarding the Civil Code
5
For the analysis of the origin and evol ution of the matrimonial convention, see Cristina Mihaela Nicolescu, The
historical evolution of matrimonial regimes. Special over view on the origin and evolution of matrimonial
conventions, Bucharest University, Law, no 1/2009, p.37-69
6
D. Lupacu, The matrimonial convention in “Romanian Judicial Op inions” no.7/2013, p.35
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