Wednesday, January 6, 2021

Divorce in Brasov

 By the decision of the court of first instance, the Brasov Court, the court found that it was notified both with a main divorce application and with a counterclaim regarding the divorce.

The court of first instance, the Brasov Court, admitted in part the civil action filed by the plaintiff and admitted in part the counterclaim filed by the counterclaimant in contradiction with the counterclaimant and, consequently, dissolved the marriage of the parties through the sole fault of the defendant; ordered the defendant to return to the name he had before the marriage.

At the same time, the court of first instance established the minor's residence at the mother's domicile and the exercise of parental authority exclusively by the mother over the minor. At the same time, it obliged the counterclaimant to pay to the counterclaimant, as a maintenance pension in favor of the minor an amount representing 1/4 of his net monthly income, representing the father's contribution to the expenses for raising, educating, teaching and vocational training of the minor. on the date of filing the request for summons and until the minor reaches the age of majority or new court orders. In addition, the court of first instance allowed the applicant to have personal relations with the minor of the minor, according to the following schedule: - during the summer holidays - 2 weeks in August, with the minor taking the minor from the mother's home and bringing the minor back to the applicant.

The defendant appealed against this decision, regarding the solution of the court of first instance to force her to return to the name prior to the marriage.

In order to pronounce this decision, the Brasov District Court took into account that no agreement was reached between the parties in the sense that the plaintiff should keep the name acquired through marriage, and the plaintiff did not prove good reasons to keep the name acquired through marriage.

The appellant-defendant showed that this decision is illegal and unfounded because, according to art. 383 para. 2 Civil Code, for good reasons, justified by the interest of one of the spouses or the best interests of the child, the court may allow the spouses to keep the name worn during the marriage, even in the absence of an agreement between them.

The appellant pointed out that the marriage between the parties lasted 25 years, during which time she was known in society under the name acquired by concluding the marriage; at the same time, exclusively the appellant is the one who exercises parental authority over the minor, and the child's home was established at his / her home.

In the reasoning of the appeal, it was shown that the judicial practice considered that the applicant's desire not to subject minors to unnecessary trauma by the need to provide embarrassing explanations, both at school, falls within the scope of duly justified reasons for keeping the name as well as in the circle of friends regarding the name different from that of the parent to whom they were entrusted. In the literature it has been accepted that not only a material interest can substantiate such a request, but on the contrary, a moral one; In this sense, the judicial practice recognized as a well-founded reason for keeping the name of the marriage the desire of the parent to keep the name that his minor children bear. Moreover, a common name can be regarded as a mark of belonging to the same family, so that it can be considered that the preservation of the name is thus justified by a moral interest, in the situation presented by the plaintiff in the appeal. Also in this sense, the Constitutional Court ruled by Decision no. 96/2013 by which he showed that the name differences between parents and minor children represent an embarrassing situation likely to negatively influence moral and social development, representing good reasons to justify the consent of the spouses to bear the name acquired during the marriage and after its dissolution .

The Court for Minors and Family Brasov, by Civil Decision no. 48 / A / 2020, admitted the declared appeal and allowed the appellant to keep the name acquired through marriage.

In order to decide in this respect, the court showed that the court of first instance merely found that no agreement had been reached between the parties and that the counterclaimant had not proved the existence of solid reasons to keep the name acquired by marriage, without analyzing its supports and from the perspective of the child's best interest, which prevails in the adoption of decisions regarding family life.

The appellate court held that the effects of divorce are, most of the time, felt mainly by children, who lose not only the unity of the family, but also the connection, at least formal, between its members, expressed by the common name.

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