Engagement under the provisions of the New Civil Code of Romania
At this point, the institution of engagement is
governed by the provisions of the New Civil Code, specifically by the
provisions of articles 266-270 of Law no. 287/2009 on the Civil Code.
Article 266 thus states that
"the engagement is the mutual promise to enter into marriage".
However, all regulations related to this institution are applicable provided
that the engagement was concluded after the date of entry into force of the
Civil Code.
The conclusion of an engagement
in Romania does not imply the observance of any formalities, the Civil Code
expressly stating that its evidence can be achieved through any means of proof.
Moreover, the conclusion of the engagement is not a criterion for the conclusion
of marriage.
Romanian legislation does not
recognize same-sex marriage or engagement. This emerges clearly from the
provisions of par. (5) of art. 266 which provides that the above-mentioned
possibility to conclude an engagement exists only between a man and a woman.
Similarly, the provisions of art. 271 of the New Civil Code regulates marriage
"between a man and a woman through free and personal consent".
Engagement is considered to be a social
and moral relationship, consensual and freely consented, that offers parties a
certain legal status and is also a producer of some patrimonial effects in the
event of cessation. Like any social relationship, it can be broken, and the New
Civil Code of Romania provides for this possibility in art. 267, stating that
the fiance who breaks the engagement will not be obliged to conclude the
marriage, and the establishment of any penalty clauses on breaking the
engagement will be considered unwritten. Regarding the possibility of breaking
the engagement, there is a manifestation of symmetry with its conclusion,
being that the break of engagement is not subject to any formality and may be
proved by any means of evidence.
As we mentioned the existence of
certain patrimonial consequences in the event of a break of engagement, it
should be mentioned that the break will result in the obligation to repay the
gifts received in the consideration of engagement or throughout the engagement,
as well as in the consideration of marriage, the exception being the usual gifts.
The refund will be made in nature or to the extent of enrichment, if the first
method of reimbursement is not feasible. The situation in which there is no
obligation of restitution regards the termination of engagement by the death of
either one of the fiancés.
Romanian legal drafters felt
necessary to establish the liability for the abusive break of engagement, so
that the person responsible for this will be obliged to pay compensation for the
expenses incurred or contracted in consideration of marriage, but also for any
other caused damages. In identical circumstances, the person culpable of
causing the break of engagement party can be held accountable. These actions
have an accountability limitation period of one year, which begins to run from
the break of engagement.
Cohabitation
Cohabitation is accomplished between
a man and a woman who do not make any promises regarding the conclusion of the
formalities relating to marriage. We see here the first difference between cohabitation
and engagement, seeing that while engagement involves a promise from both sides
to enter into the marriage, cohabitation does not require such a promise, but the
simple cohabitation of the parties without the consideration of the marriage.
Therefore, the engagement may involve cohabitation in some degree, specifically
in terms of coexistence, but cohabitation can not involve engagement.
Paramours do not conclude any
form of promise between them. However, even if the parties to a cohabitation would
promise each other something, they would not be penalized for failing to comply
with the promise because the cohabitation is not regulated by the Romanian
legislation, specifically by the New Civil Code, this being the second
difference between engagement and cohabitation .
Cohabitation is not an
institution regulated by law and its development is based merely on traditions
and customs, not on legal provisions, while engagement is specifically regulated
by the Romanian legislation regarding family law.
Darie, Manea & associates guarantee its clients professional legal
consulting and representation with all the competent authorities. If you need
further information regarding the engagement or the implications of cohabitation
in Romania, don’t hesitate to contact one of our specialized lawyers. Family
law represents an important field of our activity and we look further to
offering you the information and guidance you need.
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