DIVORCE PROCEDURE IN ROMANIA

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

1/1/1900

According to the Romanian law, marriage can be terminated by divorce in the following cases:

1. Divorce by mutual agreement, requested by both spouses, in compliance with the conditions stipulated by the law (it passed at least one year since the marriage was performed and there are no minor children resulted from the respective marriage);
2. The divorce requested by any of the spouses, as because of his health state, it is impossible to continue the marriage.
3. Divorce for the reason of exclusive fault of the orther spouses, requested by one spouse. In this case, however, the court might establish (following the evidence) the fault of both spouses, and might decide to terminate the marriage by divorce for the reason of common fault of both spouses.

The divorce petition

1. The divorce petition will contain a main claim, respectively the terminantion of the marriage by divorce.
   Besides the main request, the petition may contain ancillary claims, such as:
   - keeping the name acquired by marriage or return to the previous name;
   - entrustment of the minor chlidren resulted from the marriage;
   - ordering the other spouse, who won’t be entrusted the minor chlidren, to pay them a monthly pension.
2. The divorce petition may also contain a second claim, respectively the partition of the joint property (the assets acquired by the spouses during their marriage). The court will decide about this claim only after the divorce is pronounced and the divorce decision is final and irrevocable. The claim regarding the partition of the joint property can also be done separately, at any time, but only after the divorce decision is final and irrevocable.

The original marriage certificate will be attached to the divorce petition.

The competent law court
The competent law court for divorce cases is the first court. Even none of the spouses lives anymore in Romania and has the residence abroad, the divorce claim can be solved by a Romanian court.
The divorce petition has to be personally submitted by the spouse (the complainant) and in case of divorce by mutual agreement, the divorce petition shall be submitted personally by both spouses.

The proceedings in front of the court
The procedure in front of the court is different for the three cases above mentioned. But in all three cases the personal presence is needed of the complainant, except certain situations expressely stipulated by the law. In this respect, the Romanian law stipulates that the party who has residence abroad can be represented by an attorney-in-fact in front of the court, during all the divorce proceedings.
 

1. In case of divorce by mutual agreement, the divorce petition has to be signed by both spouses and personally submitted to the court by them. After receiving the petition, the judge will check the consent of both spouses, then will set a term of at least two months for public debates. At the hearing, the court will check if the spouses insist on divorce based on their mutual agreement and, if so, the application will proceed to be decide upon by the court, without being needed any evidence regarding the reasons of divorce. The decision which is pronounced in such case is final and irrevocable.
2. In case the divorce is requested by any of the spouses, as of his health state, it is impossible to continue the marriage, the court will decide the termination of the marriage, and not the divorce for the reason of the exclusive fault of one spouse or of both spouses.
3. Divorce for the reason of exclusive fault of one of the spouses, requested by one spouse.
   The complainant has to be personally present (or represented in the situations expressely stipulated by law) at the proceedings in front of the court. In case of unjustified absence of the complainant, even the defendant is present at the proceedings, the court will reject the divorce claim as unsustained.
   The proceedings in this case will be in public hearing. The court may also decide the proceedings to take place in closed session, if this will provide a better judgement or evidence.

If both spouses agree, and they fulfil the conditions stipulated by law, at the first hearing, it is possible to change the claim from divorce for the reason of exclusive fault of one of the spouses into divorce by mutual agreement.

The reasons proving the exclusive fault of one of the spouses can be: extramarital relationships, domestic violence, verbal violence etc.; these facts can be proven by documents, witnesses, personal interrogation of the spouses etc.

In order to obtain a divorce decision for this reason, the complainant has to prove the exclusive fault of the other spouse. The other spouse, at its turn, may also submit to court a counterclaim, requesting the divorce for the reason of exclusive fault of the first complainant.
All the proven facts have to show that family relationships are seriously and irreparably damaged, that it is impossible to continue the marriage, and that there is no possibility of reconciliation between the spouses.

The court can decide the divorce for the fault of both spouses, even when only one of them made the petition, if the evidence show the fault of both of the spouses.

In case that, following the evidence, it results only the complainant’s fault, and the defendant did not submit to the court a counterclaim, the divorce claim will be rejected by the court.

The complainant may renounce at the divorce claim anytime during the proceedings, even if the defendant opposes. The complainant’s renounciation at his own claim has no influence upon the counterclaim submitted by the defendant.

The divorce proceedings shall end in case of reconcilliation of the spouses at any stage or in front of any court.

The court will not mention the divorce reasons in the decision, in case both spouses will make a request in this respect.
The term for appeal and for recourse (the 2nd appeal) is of 30 days and it begins from the date the written decision is received by the parties.