This article deals with the position following an application for a divorce maintenance and division of assets during the divorce if the divorce application is heard in Romania.
Romanian legislation has tried to approach this matter but the courts are limited to applications that can be made under the Romanian Civil Code.
According to the Romanian legislation, art. 389 of the Romanian Civil Code it provides that following a divorce the maintenance obligation imposed by the law between parties ceases. Therefore, after the divorce, a party in need is entitled to receive maintenance from the other party only in certain circumstances and if specific mandatory requirements are met. To receive maintenance from the other party after a divorce, a party must prove that he/she is in need due to an incapacity to work which occurred before the marriage or during the marriage. He/she will also be entitled to receive maintenance, if the incapacity arose within one year from the date of the divorce, but only if the incapacity is caused by a circumstance that is directly connected to the previous marriage. There is no automatic right to apply for maintenance as in many western countries.
The court can until a final decision is granted in respect of the divorce by way of issuing a temporary presidential order establish temporary measures in respect of residence of any underage children, maintenance, and the use of the family house. As a corollary to this we consider that maintenance to the other party can also be granted during the procedure but only if the specific requirements mentioned by art. 389 are met.
Regarding the payment of maintenance during the period between lodging the divorce application and the divorce being finalised the law makes no specific mention regarding the payment of maintenance except as mentioned.
Notwithstanding the above provisions the party considered responsible for the divorce cannot receive maintenance for more than one year after the divorce has been pronounced. In all the other cases, the maintenance will cease when the party receiving maintenance will remarry or their circumstances will change.
Furthermore, the maintenance as mentioned above and established by art 389 Civil Code cannot and should not be confused with the compensation that one party might be entitled in case the marriage is pronounced by the other party’s fault as established by art. 390 Romanian Civil Code.
This compensation can be requested by the claimant party and can be obtained from the defended party only in case the court will establish the defendant at fault in breaking the marriage and only in case the marriage lasted for at least 20 years.
What is more, if a party is requesting compensations on art 390 Civil Code he/she cannot also request maintenance to be paid by the other party as mentioned in art. 389.
There are also provisions regarding the situation of the party’s rights towards the joint property assets until the divorce will be finalized. Article 385 paragraph 1 of the Romanian Civil Code establishes that the matrimonial regime regarding assets will be considered to have ceased on the date the divorce application is registered in Court.
Furthermore, the same article stipulates that in the specific circumstances of the case the court can establish that the matrimonial regime has ceased when the parties separated prior to lodging the divorce application.
In most cases the court dealing with the divorce and separation of the assets will first rule in relation to the application for divorce and only afterwards will it consider any application regarding maintenance and the separation of the assets. The reason for proceeding like this is that in respect of the divorce procedure less evidence is required by the court as compared to the application for separation of the assets that can be quite lengthy and expensive.
The exception to this unwritten procedure but normally followed by the courts is when the parties have requested a divorce and have agreed how the assets that were acquired by them during marriage and under the community of assets regime will be divided. In this case the court can rule over the divorce and the separation of the assets at the same time in accordance with the parties’ agreement.
In all the other cases the divorce will first be finalized and afterwards the court will decide on the separation of the assets.
The separation of the assets will be conducted in accordance with general procedure of the separation of joint property which is stipulated by articles 980-996 of the Romanian Civil Procedure Code. The procedure is initiated by one of the parties who will make an application to the competent court for division of assets. The application is based on a list of the assets that were acquired by the parties during the marriage, estimating the value of each of those assets.
Where agreement cannot be reached between the parties, the court will establish which of the assets were acquired during the marriage and the respective contribution of each of the parties towards acquiring these assets as well as any expenses that may have been incurred and contributed by either of the parties towards their acquisition.
The rule is that the separation will be done in kind and only in exceptional circumstances when the asset cannot be divided in a satisfactory way, will the separation be done by giving the asset(s) to one of the parties who will pay compensation to the other party in the amount fixed by the court. Where an asset cannot be divided or if by dividing it significant a loss of value of that asset will occur then until the court decides on the separation of the assets then in accordance with art. 989 Romanian Civil Procedure Code either of the parties can request for that asset to be placed in his/her care pending the court decision.
When considering the request when making the decision the court will consider the following, i) the share that each party is entitled to, and ii) if either of them brought any improvements to the asset. At the same time, the court will establish the compensation value of the other parties’ share and which the retaining party who will have to pay.
The Romanian Civil Code only refers to physical assets and the legal dispositions referred to do not apply to money or other financial instruments including shares and securities. For this reason the court cannot award an advance of the money that one of the parties is entitled to prior to finalizing the separation of the assets as this is not the same as placing an asset under one of the party’s control as mentioned by the Romanian Civil Procedure Code.
The division of assets in a Romanian divorce is an area of law which is slowly being developed. When advising a client where there is a choice of legal venue to hear the divorce application and for division of assets careful consideration of the venue will often depend on the most favourable forum for our client.