International Divorce and Family Law


International Divorce and Family Law

We handle international cases of foreign citizen versus Romanian citizen on:
- Modification of Custody
- Paternity Conflicts
- Separation of assets
- Spousal maintenance and damages

Our lawyers provide:

- Sensible, strategic, knowledgeable, and sophisticated advice and assistance.
- Intelligent strategies.
- Common sense solutions to complex issues

Our lawyers help you to solve international divorce and custody cases if your husband or wife is Romanian and more.

(International Divorce & Custody)

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The Divorce


The spouses may elect one of the following laws applicable to divorce by mutual agreement:

   a) the law of the state on whose territory the spouses have their common habitual residence on the date of the convention on choice of applicable law;
   b) the law of the state on whose territory the spouses have had their last common habitual residence, if at least one of them is still living there on the date of the convention on choice of applicable law;
   c) the law of the State of nationality of either spouse;
   d) the law of the State where the spouses have lived at least 3 years;
   e) Romanian law.

    Date of the convention on choice of applicable law

    The convention on the choice of law applicable to divorce may be concluded or amended the latest until the date of referral to the authority competent to pronounce the divorce.

    However, the court may take note of the spouses’ agreement the latest at the first hearing at which the parties were duly summoned.

    Form of the convention on choice of applicable law

   The convention on choice of law applicable to divorce must be concluded in writing, signed and dated by the spouses.

    The law applicable to divorce

   In the absence of choice of law by the spouses, the law applicable to divorce is:

   a) the law of the state on whose territory the spouses have their common habitual residence on the date of submitting the application for divorce;
   b) in the absence of the common habitual residence, the law of the state on whose territory the spouses have had their last common habitual residence, if at least one spouse still has its habitual residence on the territory of that state on the date of submitting the application for divorce;
   c) in the absence of a habitual residence of one of the spouses on the territory of the state, where they had their last common habitual residence, the law of the common nationality of the spouses on the date of submitting the application for divorce;
   d) in the absence of common nationality of the spouses, the law of the last common nationality of the spouses, if at least one of them has kept this citizenship on the date of submitting the application for divorce;
   e) Romanian law in any other case.

    If foreign law thus determined does not allow divorce or allows it under very restrictive terms, Romanian law applies, if one of the spouses is a Romanian citizen or has his/her habitual residence in Romania on the date of the application for divorce.

Recognition of divorce by unilateral denunciation

  The document drafted abroad, whereby the unilateral will of the man to dissolve the marriage, where the applicable foreign law does not recognize the woman’s equal right, cannot be recognized in Romania, unless the following conditions are cumulatively met:

   a) the document was prepared in compliance with all conditions of substance and form stipulated by the applicable foreign law;
   b) the woman freely and unequivocally accepted this method of dissolution of marriage;
   c) there is no other reason for refusing recognition on the territory of Romania of the judgment that allowed the dissolution of marriage in this way.

According to the Civil Code, if the spouses choose Romanian law the procedure below will be followed:

Divorce can be obtained in Romania by mutual consent of the spouses if they have been married and there are no children resulting from the marriage.

Grounds for Divorce

In the absence of mutual consent, divorce can be obtained upon request of one spouse in the following cases:

- There are serious grounds for divorce;
- There are serious grounds for the deterioration of the relationship between the spouses;
- Continuation of the marriage is no longer possible for the spouse requesting divorce.

The following have been determined in Romanian cases to be grounds for divorce:

- Unjustified refusal by one of the spouses to live with the other or unjustified desertion of the conjugal home (de facto separation imputable to defendant spouse);
- Infidelity of one of the spouses;
- Bad (moral or physical) behaviour;
- Existence of a serious incurable disease from which one of the spouses is suffering and of which the other spouse was unaware prior to the marriage, if it is established that the symptoms of the disease subsequently become worse and are of a nature to justify the refusal of the claimant spouse to continue living with the defendant spouse since the continuation of the marriage has become impossible.

CHILD CUSTODY

    Applicable law is established under the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, adopted in Hague on 19 October 1996, ratified by Law no. 361/2007, published in the Official Gazette of Romania, Part I, no. 895 of 28 December 2007.


Maintenance obligation of the minor

    The law applicable to the maintenance obligation is determined according to the rules of the European Union law.

COUNCIL REGULATION (EC) no. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations presently applies.

According to the Law no. 361/2007 on international custody, if the spouses choose Romanian law the procedure below will be followed:

The court is required, even if the spouses have not made any express application regarding custody, to issue a decision concerning the custody of minor children when issuing a divorce judgment. The court bases its decision concerning custody of minor children on the interest of the children. Before issuing its decision it must hear the parents, the tutelary authority and children of ten years and over. An agreement between the parents regarding custody of minor children is not binding to the court.

If the child has been in the custody of one parent, this parent has parental rights and obligations with regard to the child. The other parent maintains the right to have personal contact with the child and to oversee its upbringing and education, including occupational training.

MODIFICATION OF CUSTODY

Applicable law is established under the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, adopted in Hague on 19 October 1996, ratified by Law no. <span style="text-decoration: underline;">361/2007</span>, published in the Official Gazette of Romania, Part I, no. 895 of 28 December 2007.

PATERNITY CONFLICTS

    Parentage of the child resulting from marriage is established according to the law that, on the date it was born, governs the overall effects of its parents’ marriage.

   If the parents’ marriage ceased or was dissolved before the child’s birth the law that governed its effects on the cessation or dissolution date will apply.

    The law shown also applies to denial of paternity of the child born within the marriage, and to the child obtaining its name.


Legitimation of the child


   If the parents are entitled to proceed to legitimation by subsequent marriage of the previously born child, the conditions required for this purpose are the ones provided by the law applicable to the general effects of marriage.


Parentage of the child born outside of marriage


   Parentage of the child born outside of marriage is established according to the child’s national law on its birth date. If the child has multiple nationalities, other than the Romanian one, the law of the citizenship which is most favourable to it shall apply.

   The law provided above applies especially to the recognition of parentage and its effects and to the challenging of parentage recognition.


Father’s liability

  The mother’s right to ask to the father of the child born outside marriage to bear the expenses during pregnancy and the ones incurred by child birth is subject to the mother’s national law.


SEPARATION OF ASSETS


    Law applicable to goods made during marriage

  The co-ownership right and the other real rights over property, including corporal securities, are governed by the law of the place where they are located or exist, unless otherwise provided by special provisions.

    Law applicable to operating assets

    The law applicable to a patrimony assets that are destined for a specific purpose of professional or other kind is the law of the state with which these assets has the closest connections.

    The law applicable to claiming movable goods

  Claiming a movable good is governed by the law of the State on which territory the good is located at the time of claim.

   However, if the law of the State where the good is located at the time of claim does not include provisions on the protection of bona fide third party owner, it can invoke the protection conferred to it by the law of the State where the good is located at the time of claim.

  Movable tangible goods

   The establishment, transfer or extinguishment of real rights over a good that changed its location are governed by the law of the place where it was at the time when the legal fact occurred, which generated, modified or extinguished that right.
  
Securities

   The issuance of registered or bearer shares or bonds is subject to the law applicable to the organic status of the issuing legal entity.

   The conditions and effects of transferring one of the securities mentioned under paragraph (1) are subjected to the:

   a) law applicable to the organic status of the issuing legal entity as regards the nominative title;

   b) law of the place of payment of the order instrument;

   c) law of the place where the bearer title is found at the time of transfer in the relations between successive holders, and between them and third parties.

Intangible assets

    The generation, content and extinction of copyright in a work of intellectual creation are subject to the law of the State where it was for the first time made public through publication, representation, exhibition, broadcast or otherwise appropriate.

    Undisclosed intellectual creation works are subject to the national law of the author.

    The law applicable to industrial property right

 The generation, content and extinction of copyright in a work of intellectual creation are subject to the law of the State where the deposit or registration was made or where the application for deposit or registration was submitted.

According to the Civil Code, if the spouses choose Romanian law the procedure below will be followed:

Joint property can be divided either by mutual agreement of the spouses or by a court decision. If the spouses cannot agree, an application for division of the property may be lodged after the dissolution of the marriage, through the divorce proceeding, through a principal action, or at any time thereafter (incidental or accessory application).

The share of property awarded to each spouse is determined on the basis of his or her contribution to acquiring and maintaining the joint property. The wife's work in the house and care of the children are taken into account when determining each spouse's contribution to obtaining the joint property. This contribution may be established by any means of proof, since it is a de facto situation.

DAMAGES AND SPOUSAL MAINTENANCE

According to the Civil Code of Romania, the spouse that is guilty for marriage dissolution will pay moral damages to the other spouse in the amount determined by the court.

The former spouse is entitled to maintenance if he or she is in financial need due to incapacity to work arising before or during the marriage, or to incapacity arising within a year of the divorce provided this incapacity is due to events relating to the divorce. The former spouse loses the right to maintenance from the other spouse if he or she remarries. If the divorce judgment has found only one of the spouses to be at fault, this spouse is entitled to maintenance from the other spouse for only one year after the divorce, whereas the other spouse is entitled to maintenance for an indefinite period.

ANNULMENT OF MARRIAGE

A marriage can be declared invalid in Romania on the grounds of the following breaches of the legal provisions relating to the marriage contract:

- The marriage was contracted in breach of the provisions concerning the legal age for marriage;

- The marriage was contracted by a person who was already married;

- The marriage was contracted between related persons whose degree of relationship forbids them to marry (marriage is forbidden between persons related in the direct line, regardless of the degree of relationship, or in the collateral line up to and including the fourth degree);

- The marriage was contracted between an adoptive parent, or a relative thereof, and his or her adopted child or a relative thereof;

- The marriage was contracted by a person who was insane;

- The marriage was contracted without the consent of the future spouses or such consent was not given in accordance with the legally required procedure (the marriage must be contracted before a civil registrar at the register office in the presence of the future spouses, whose consent must be given personally and publicly);

- Incompetence of the registrar official (the marriage ceremony was performed by an official not authorized to perform it);

- The marriage was contracted between persons of the same sex;

- The marriage banns were not published and there were no witnesses to the marriage;

- The consent was invalid on the grounds of error (solely concerning the physical identity of the other spouse), trickery or duress.

An application for relative nullity or absolute nullity should be lodged with the court having jurisdiction for the defendant's domicile. If the defendant is domiciled abroad or has no known domicile, the application should be lodged with the court having jurisdiction for the defendant's place of residence, or, if the defendant has no known residence, with the court having jurisdiction for the claimant's place of domicile or residence.