Challenges of the Knowledge Society (Apr 2011)
CONSIDERATIONS REGARDING THE DIVORCE BY AGREEMENT OF THE SPOUSES, ACCORDING TO THE NOTARY PROCEDURE
Abstract
By amending the Family Code according to the provisions of the Law no. 202/2010 regarding some measures in order to speed the solving of processes (“Law of small reform”), representing the introduction to the New Civil Code adopted by the Law no. 287/2009, published in the Official Gazette no. 511 of July 24, 2009, being to become effective, is inserted for the first time the possibility to end the marital relations also before the registrar of births, marriages and deaths or notary public, in strict terms of law. For instance, if there was an agreement between the spouses, without minor children, born during the marriage or adopted, the legislator sets up the possibility to evade the contentious proceeding before the common law courts and allows the spouses to choose between the administrative procedure and the notary procedure in order to dissolve the marriage.In other words, is legislated the possibility of spouses to cease the marital relations also by mutual agreement, like at the time of their marriage, ascertained by the registrar of births, marriages and deaths or notary public. Therefore, on the one hand, is expressed the principle of legal symmetry in this matter, in terms of recognition regarding the ascertaining of the existence of mutual agreement, without the intervention of the magistrate, according to the maxim “mutuus consensus, mutuus dissensus”. On the other hand, legitimately, the legislator has in view to eliminate the settlement of the applications for divorce by the courts, given that there is the convergence of spouses’ will and no minor child, for the purpose of relieving the courts, a solution that seems quite logical considering that the settlement of such case does not require the jurisdictional work.As a conclusion, an analysis of the new vision of the legislator as regards the settlement of divorce by notary non-contentious procedure is absolutely necessary given that the New Civil Code reintegrates the provisions of the Family Code in the spirit of the unitary conception of the Romanian pre-war private law school.
