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Brève histoire de l’institution de la famille et du mariage en Roumanie

The Romanian State recognises the family as a fundamental institution benefiting from a specific regime. The main regulations on the family are contained in the Constitution and the Civil Code, as follows :

The family and marriage in the 1991 Constitution
Article 26
(1) : Public authorities respect and protect intimate, family and private life.
Article 48
(1) : The family is founded on marriage freely entered into between the spouses, on their equality, and on the right and duty of parents to ensure the growth, education and upbringing of their children.

The family and marriage in the 2011 Civil Code
Article 258 : The family
(1) : The family is based on marriage freely entered into between the spouses, on their equality, and on the right and duty of parents to ensure the upbringing and education of their children ; (4) : For the purposes of this Code, spouses are defined as a man and a woman united by marriage.
Article 259 Marriage
(1) Marriage is a union freely entered into between a man and a woman, by virtue of the law.
(2) A man and a woman have the right to marry in order to build a family.
(3) The religious celebration of marriage may only take place after civil marriage.
Article 277 Prohibition and equivalence of certain forms of cohabitation with marriage
(1) Marriage between persons of the same sex is prohibited.
(2) Marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or foreign citizens are not recognised in Romania.
(3) Civil partnerships between persons of different sexes or of the same sex entered into or contracted abroad by Romanian citizens or foreign citizens are not recognised in Romania.
(4) The legal provisions relating to the free movement on Romanian territory of citizens of the Member States of the European Union and of the European Economic Area shall remain applicable. The private life of Romanians is also governed by numerous other provisions of civil and criminal law. An analysis of all the legislation concerning the family reveals the following : there is no strict definition of a family. It can be created in several ways. The first and most common is marriage. In Romania, only a man and a woman can marry. Same-sex marriages and civil partnerships are not recognised in Romania, even if they have been legally registered in a country where they are permitted.
However, the Romanian Constitutional Court, through its decisions no. 580/2016 and no. 562/2016, has established that the notion of family life also includes de facto relationships, distinct from relationships resulting from marriage. When other laws on the family which attempt to define its members are taken into account, it can be said that in Romania, the family is in most cases composed of a man and a woman, married or not, their unmarried children and their parents.
To come back to the question of cohabitation (or common-law marriage) : this means that a man and a woman live together for a certain period of time. Cohabitation, which is a social reality, is not considered illegal. Romanian law does not prohibit cohabitation, but it does not offer cohabiting couples the same protection as married couples. Romanian family law considers de facto couples to be outside the scope of the law, without being either prohibited or recognised.

Civil marriage and religious marriage

In Romania, until the nineteenth century, the term "family" was rarely used outside the religious context. Until that time, it was impossible to talk about the family outside of a religious marriage. The family was built solely around a couple legally accepted by both society and the Church. In fact, all the laws, written and unwritten, governing Romanian family life were religiously inspired and derived from Byzantine law. This state of affairs changed with the creation of the modern Romanian state and the development of the first codes of law, based on the Napoleonic model.

In Romania today, one of the constitutional principles concerning the family, contained in the provisions of Art. 48(2) of the 1991 Constitution (revised in 2003) and Art. 259(3) of the 2011 Civil Code, is that "a religious marriage may only be celebrated after a civil marriage".

This type of provision appears from Art. 22 of the 1866 Constitution onwards. Following the model of the Napoleonic Civil Code, the Church no longer had the right to issue civil status documents, which was transferred to the town halls. However, the compulsory nature of religious marriage was preserved.

The 1864 Penal Code also provided that "any priest who solemnises a marriage before the acts and formalities required by civil law have been completed will be punished on the first occasion with a fine and, in the event of a repeat offence, with a prison sentence" (Art. 166). This legal rule was perpetuated in the Criminal Codes of 1912, 1936 and 1948.

The 1923 Constitution (Art. 23) maintained the obligation not to celebrate a religious marriage in the absence of a civil marriage, but without making any reference to the compulsory or optional nature of religious marriage.

The 1938 Constitution, which was effectively in force for only two years, reintroduced the obligation to celebrate a religious marriage in order to validate a previously performed civil marriage (Art. 20 : "Civil status documents are defined by civil law. The preparation of these documents must always precede the religious blessing, which is obligatory for members of all denominations").

After the establishment of the Communist regime, all references to religious marriage in official documents were removed, with only civil status documents issued by State bodies now being valid. However, the 1964 Criminal Code decriminalised the performance of religious service prior to civil marriage. Post-1990 legislation began a return to the pre-communist form. As a result, law no. 119/1996 on civil status records introduced the penalty of a fine for "the celebration by ministers of religion of religious marriage services [...] if the civil marriage certificate is not presented" (Article 62, paragraph 1, lit. k).

Bibliography :
 Bacaci, Dumitrache, Hageanu, 2005, Dreptul familiei, Bucuresti : AllBeck ;
 Filipescu, 2000, Tratat de dreptul familiei, Bucuresti : AllBeck ;
 Florian, E. 2003, Dreptul familiei, Cluj-Napoca : Limes ;
 Moloman, B.D. 2012, Dictionar de dreptul familiei, Bucuresti : Universul Juridic.

See also the current debate from September 2018 : "The referendum for the redefinition of the family will be held".

D 16 novembre 2017    AGabriel Birsan

CNRS Unistra Dres Gsrl

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