DIN NOU DESPRE PRESTAŢIA COMPENSATORIE ŞI DREPTUL LA DESPĂGUBIRI. TRECUT ŞI VIITOR SAU ÎNTRE SANCŢIUNE ŞI RECOMPENSĂ
AGAIN ON THE COMPENSATORY BENEFIT AND THE RIGHT TO COMPENSATION. PAST AND FUTURE OR BETWEEN SANCTION AND REWARD
In Romania, the dissolution of marriage by either spouse’s exclusive fault represents only a small part of the family disputes, and therefore, the case law encounters the difficulties alleged by the choice of either material benefit regulated for the case of dissolution of the marriage by the exclusive fault and, especially, the possibility of confusion of these, especially in a system of law where, except the obligation to support, all the other aspects are characterized as absolute novelty. The fact that these effects of the divorce are new, can be noticed not only in the legal doctrine and in the case law approaching them with reluctance, for fear of not making mistakes, but also in the society which does not seem to be accustomed to such compensation. Throughout the study, we have attempted to identify the procedural cases in which these applications may be filed and we have made an analytic overview of the judicial practice in the matter. Finally, noticing the inconsistency of the regulation in the matter, we filed a proposal of lege ferenda: either the unification of the basis of compensation by repealing one of these institutions, or the removal of the condition that the duration of the dissolved marriage should be of minimum 20 years, a condition provided for the determination of the compensatory benefit.