PRENUPTIAL AGREEMENTS AND THEIR VALIDITY UNDER ROMANIAN LAW

By: Eli Doron, Adv; Yaron Tikotzky, Adv, (C.P.A); Dr.Slomo Nass, Adv, (C.P.A)

1/1/1900

At present, in Romania cannot be concluded prenuptial agreements, because ”there is no legal basis”. Therefore, under the current law, such an agreement is considered void.
The Family Code of Romania, which is in force since 1954, does not allow the future spuoses to sign a prenuptial agreement. In this respect, art. 30 stipulates: ”The assets aquired during the marriage, by any of the spouses, shall be, from the date of acquiring, the common property of the spouses. Any agreement to the contrary is void. The quality of the common assets doesn’t have to be proven,” as it is presumed by the law.
The Family Code also stipulates what happens to common property in caz of divorce: ”At the dissolution of marriage, common assets shall be divided between the spouses, according to thier agreement. If the spouses do not come to an agreement to this respect, then the court will decide upon the partition.”
The new Romanian Civil Code – which will enter in force in 2011, brings a new perspective – it regulates the prenuptial agreements, called ”matrimonial conventions”.

These civil agreements set out the way in which the partition will be done in case of divorce, for the assets acquired after marriage. Under the new regulations, the spouses may agree that in case of divorce, one of them to receive the assets acquired during the marriage or what percentage of them each spouse is entitled.

In plus, being a civil agreement freely consented by the two future spouses, the convention may include assets acquired before marriage, which according to the current Code cannot be subject to partition done by the court. In case the spouses shall not conclude such prenuptial agreements, then shall be applied the existing dispositions, under which in case of divorce, assets are presumed to have been acquired by the spouses in equal contribution, and therefore to be divided equally between the two spouses. This is only a legal presumption, which can be reversed by contrary evidence.

Under the sanction of absolute nullity, matrimonial conventions have to be concluded in writing and authenticated by a notary public, in order to be opposable to third parties. Matrimonial conventions are subject to publicity, by registration with the National Register of matrimonial regimes, kept in electronic format by the National Union of Public Notaries from Romania.

The new Civil Code stipulates 3 possibilities to choose the matrimonial regime, when concluding the marriage, respectively:
1.) legal community;
2.) separation of property;
3.) conventional community.
 

1. 1. In the first case, the spouses may choose whether those assets will be like before, respectively common assets, and in case of divorce to be divided in equal shares, regardless of the amount of effective material contribution of one of the spouses at their acquisition;
    
2. In the second case, the spouses may choose that the assets acquired after marriage to follow the legal regime of individual assets, so that in case of divorce each of the spouses to get the assets individually acquired;
    
3. The third possibility offers the spouses the freedom to choose that the assets to follow a legal regime of joint ownership, but based on the criterion of individual contribution. This means that in case of partition, the assets are to be divided not in equal shares, but according to their effective contribution at their acquisition.