Love and marriage or a contract of wager
Recently we have had to consider the possibility of a client obtaining in Romania an annulment of his marriage. This raised a number of interesting questions as well as a consideration as to how different legal systems treat a marriage.
Coming as I do from a Common Law legal system it became clear to me that when discussing marriages and divorces and annulment I approached the matter from a very different legal perspective.
Both legal systems, the Code and the Common Law accept the concept of a “common law” marriage. That is a woman and a man living together and holding themselves out to be married without any formal legal arrangement. Whilst society may accept such a relationship and treat the parties as husband and wife legally there are a number of issues – children – inheritance- pensions which will arise from such a relationship. I will not discuss this in this blog but will only consider the position of a marriage as provided for by law.
The concept of a formal marriage was accepted by the Catholic Church as far back as the Council of Trent in 1545. From that date marriage became more institutionalized and records began to be kept. After the reformation, many of the practices of the Catholic Church were continued where the Catholic Church was no longer the main influence and Churches continued to keep records of marriages carried out in their churches.
Over time the Church and then the State became more involved in the relationship between the parties as property and other assets became more important, then marriage became more and more important and needed to be regularized.
Marriages under the Common law system are still seen as religious and then recorded by the Church and the State. In a church weddings, the parties sign the register after the marriage service. This show that the Church still marries people and that fact is still registered by the State. Civil weddings are the registration that the parties wish to record the fact that they are legally “married”.
The evidence of this is the registration in the Official Register of Marriages held in the church which then allows the law to have effect on such matters as inheritance- children – pensions and other legal obligations. The priest celebrating the marriage having the powers of a state registrar.
The parties to a civil marriage can terminate their relationship through a divorce decree but this only ends the civil relationship.
A marriage also does not to exist and can be annulled if the parties did not have legal capacity at the time of the registration of the marriage for example if they are under age – did not understand the nature of the service are mentally incapacitated. Non-consummation of the marriage is also a ground for annulment as the failure to consummate the marriage is evidence that the parties did not agree to be married as sexual relations is a right in marriage.
Under the Code system in Romania the position is different. The Romanian Family Code of 1953 laid out very clear responsibilities and rights and obligations of the parties to a marriage. The only authority which could marry two persons was the State and the parties had to confirm in front of the State Registrar their intention to be married and the State would grant this intention.
The Civil Code carries these obligations into a more modern framework but marriage in Romania is still a legal obligation between the parties. A marriage under Romanian law has the characteristics of a contract. It is like a contract where the terms and conditions as to exact length and obligation cannot be defined as the position will only become clearer as time progresses. The parties do not know the outcome of their agreement. In some ways, it can be viewed as a gambling or contract of wager.
It is for this reason that a marriage contract under the Romanian New Civil Code can only be annulled if the parties at the time of the state marriage do not fulfil the requirements as set out by law. That is, they must be of the age of consent; have mental capacity and know what is happening. Under the Romanian New Civil Code failure consummate the marriage is not a ground for annulment although it can be a ground for requesting a divorce.
The termination of the marriage relationship under both systems Code Law and Common Law does require that for the termination of the legal relationship between the parties that this is registered by the State. In the United Kingdom by a judge passing a divorce decree.
In Romania, it can be terminated by both parties going before a Notary Public or a Civil Status Officer and signing a document that they wish to end the marriage (terminating the contract). If they cannot agree the terms or there is a dispute over children or property then the matter will be referred to a judge who will decide on the terms of the ending of the relationship just as in a civil contract case.
The results for the parties are the same that in the eyes of the law they are no longer married.