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 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.