ROLUL ACORDULUI DE VOINŢĂ AL SOŢILOR LA DESFACEREA CĂSĂTORIEI
THE ROLE OF THE SPOUSAL AGREEMENT IN THE DISSOLUTION OF THE MARRIAGE
In order to form or sometimes even dissolve the family relationships, the Spousal Agreement is the fundamental element. Therefore, the central point of the present work is dedicated to the role of the Spousal Agreement in the dissolution of the marriage, the agreement being seen both from the perspective of the divorce itself as well as from the point of view of its effects on the minor children of the two spouses, that is, on the ancillary requests.
Throughout this study, the reader has the opportunity to acknowledge the clear theories concerning the way the agreement is assigned the primary role in the procedure of the amicable dissolution of the marriage in front of the judge, the notary public or the civil status officer.
Furthermore, the multiple valences of the agreement are emphasized, starting with those regarding the settlement during the divorce procedure and ending with a possible accord that can be concluded after a relatively long period of time from the date of the dissolution of the marriage.
Keywords: the role of the Spousal Agreement, the divorce procedure, parental agreement, the principle of consensualism, spouses, minor children, Civil Code, Code of Civil Procedure, judge, notary public, civil status officer.
NUOVI MODELLI GENITORIALI E LA TUTELA DEL NATO DA SURROGACY.
RIFLESSIONI A MARGINE DELLE SEZIONI UNITE DELLA SUPREMA CORTE
NEW PARENTAL MODELS AND THE PROTECTION OF CHILDREN BORN FROM SURROGACY. REFLECTIONS REGARDING THE UNITED SECTIONS OF THE SUPREME COURT
The work aims to analyse the Italian legal framework on family and parental models, assisted fertilisation and surrogacy, in the light of the recent ruling of the Italian Supreme Court.
Keywords: family models, parental models, assisted fertilization, surrogacy.
CONSIDERAŢII PRIVIND INSTITUŢIA TUTELEI (I)
CONSIDERATIONS REGARDING THE INSTITUTION OF GUARDIANSHIP (I)
Vlad Ionuţ DOMOCOŞ
The institution of guardianship covers all the legal provisions by which the legislator realizes the protection of the minor who is without parental protection. It is defined as being a mean of protecting the minor who is deprived of parental support, but after all the guardianship is a mechanism by which the child is protected both in terms of the personal side and in terms of the side of property.
The significant legal evolution determined by the social-economical changes appeared also in the domestic law and that is why we understand to go through it, sometimes even briefly, in the following.
Keywords: guardianship, parental protection, the minor’s interest, full legal capacity.
SCURTE CONSIDERAŢII PRACTICE ASUPRA APLICĂRII DISPOZIŢIILOR ARTICOLULUI 1.002 ALINEATUL (3) DIN CODUL DE PROCEDURĂ CIVILĂ ÎN MATERIE DE MINORI ŞI FAMILIE
BRIEF PRACTICAL CONSIDERATIONS REGARDING THE APPLICATION OF THE PROVISIONS OF ARTICLE 1.002 PARAGRAPH (3) OF THE CODE OF CIVIL PROCEDURE IN MINORS AND FAMILY MATTERS
A brief concentrated article, in which we deviate somehow from our manner of writing, which is quite “baroque”, in order to provide the reader, in a purely practical exposure, with its own point of view in the case of a complex legal issue, which the case-law has not succeeded (yet) to “tame”.
Keywords: art. 1.002 para. (3) of the Code of Civil Procedure, art. 403 of the Civil Code, presiding judge’s order, authority of res judicata, the principle of the child’s best interest.
ACCESUL LA REPRODUCEREA UMANĂ ASISTATĂ MEDICAL.
ACCESS TO MEDICALLY ASSISTED HUMAN REPRODUCTION.
THE MODEL OF ITALY
This article analyzes the current situation of medically assisted reproduction in Italy after the promulgation of Law 40 in 2004. How to apply the law today differs greatly from its original version. The controversial points like reproduction for couples who bear genetic diseases, prohibition of heterologous fertilization, cryoconservation of the embryos, obligation to perform just one and contemporaneous implant of all the embryos produced, disappeared forever. This new situation is due to the jurisprudence of the Italian Courts but especially to the changes introduced by the European Court of Human Rights and by the questions of constitutionality raised by some Italian Courts. After analysis of the legislation, the views of various authors are compared, and the weaknesses and strong points of the law are considered from the point of view of legal medicine, science and bioethics. After many years of operation of this law, Italy has returned to a situation that existed before the law. In Italy, despite the impact of prevalent Catholic thought profound changes are occurring in the traditional family, with a higher number of single-parent families, childless couples, and same-sex couples.
Keywords: Italian law, medically assisted human reproduction, filiation, child, family life.
„REŞEDINŢA OBIŞNUITĂ” ÎN CONTEXTUL DESFACERII CĂSĂTORIEI CU ELEMENT DE EXTRANEITATE
“HABITUAL RESIDENCE” IN THE CONTEXT OF THE DISSOLUTION OF THE MARRIAGE WITH AN ELEMENT OF FOREIGNNESS
Habitual residence has acquired a significant role in foreign legal relations, and family relationships are an eloquent proof of this. The matter of dissolution of marriage consistently appeals to habitual residence, as a connecting factor in conflicts of laws and conflicts of jurisdiction.
Emphasizing the importance of this link implies the inventory of Regulation (EU) no. 1259/2010, of Regulation (EC) no. 2201/2003 [respectively, Regulation (EU) 2019/1111] and the provisions of Romanian law (Civil Code and Code of Civil Procedure).
The verification of the variants of the applicable law, the relation of the habitual residence with other connection points, the arguments that plead for the frequency of its regulation are some premises that legitimize the research of the content of the notion of “habitual residence”.
In the context in which the conflicting aspects of divorce and legal separation are “dominated” by the habitual residence, it is easy to see that European normative acts do not provide either the legal qualification of the notion or the indications of establishing habitual residence. However, outlining a definition could be useful, considering a convergent (and, ideally, unitary) jurisprudence. Support for a possible definition involves checking the landmarks scattered over time in the practice of the Luxembourg court.
Keywords: divorce, separation of body, element of extraneousness, determination of lex causae, determination of competent jurisdiction, connecting factors, habitual residence, qualification.
ALIMENTOS DEBIDOS POR LOS ABUELOS A LOS NIETOS MENORES DE EDAD
SUPPLIES DUE BY GRANDPARENTS TO MINOR GRANDCHILDREN
Aída KEMELMAJER DE CARLUCCI
In this article I aim to analyse a few sentences delivered after August 2015, the effectiveness time of the Argentinian Civil and Commercial Code (hereinafter referred to as CCyC). The analysis is limited exclusively to sentences dealing with issues specific to ancestors’ obligation; it does not concern those whose topics, despite being asked for, are applicable to any liable party. I shall use the legal terminology, ancestor, to refer to grandfather, grandmother and both of them.
Keywords: Argentinian Civil and Commercial Code, jurisprudence, supplies, ancestor, subsidiarity of ancestors’ obligation.
ÎNCERCĂRI DE DEVOALARE A RAŢIUNILOR CERINŢEI CONSIMŢĂMÂNTULUI PĂRINŢILOR BIOLOGICI LA ADOPŢIE ŞI DE ARMONIZARE A PREZUMŢIILOR DE COMUNICARE CU MECANISMUL DE FORMARE A REFUZULUI ABUZIV DE A CONSIMŢI LA ADOPŢIE
ATTEMPTS TO DISCLOSE THE REASONS OF BIOLOGICAL PARENTS’ CONSENT REQUEST AT ADOPTION AND OF HARMONIZATION OF COMMUNICATION ASSUMPTIONS WITH THE MECHANISM OF FORMATION OF ABUSIVE REFUSAL TO CONSENT TO ADOPTION
In our presentation we have tried to thematize the reasons for which it is requested the consent of the biological parents at adoption, valuing in legal field the clinic experience of the psychologists. This was necessary in order to have an image of the real dimension of physical and psychical connection between the child and the biological parent, and also the conditions in which this connection may be broken definitively by opening the adoption procedure. The child’s rupture of the biological parents may be realized by adoption, only after the express consent of the parents to adoption. The Romanian legislator provided that the lack of presentation of the biological parents at two judgment terms may be considered as an abusive refusal to consent to adoption. To operate the abuse in this manner, the biological parents must know of the existence of the process of opening the adoption procedure, situation in which the citation procedure must be realized in a way that certifies that the parents know about the conduct of legal proceedings. The function of citation procedure from the stage of the adoption’s opening is that of creation the premises of appliance the rules from the abuse of right under the aspect of formation of the volitional element.
As the legislator uses the communication presumptions of the citation, we tried to harmonize the communication presumptions with the mechanism of formation of the abusive refusal to consent to adoption. In this sense, we argued that the procedure of citation realized by display or by putting the citation in the mailbox, cannot create the premises of appliance of the rules from the abuse under the aspect of formation of the volitional element, in the procedure of opening the adoption of the underage child.
Keywords: citation, adoption, abuse, presumption, display.
POT CONSTITUI MOTIVELE DE DIVORŢ TEMEIURI PENTRU ACORDAREA DESPĂGUBIRILOR CONFORM ARTICOLULUI 388 DIN CODUL CIVIL?
CAN DIVORCE GROUNDS BE CONSIDERED
AS REASONS FOR RECEIVING COMPENSATION
PURSUANT TO ARTICLE 388 OF THE CIVIL CODE?
We have to start from the idea that the divorce ground is a mixed one, of remedy and sanction. On the one hand, the divorce is the solution to a fact situation that cannot continue any longer because of the guilty facts that prejudiced the family relationship but also because of the fact that, from the perspective of the innocent husband (especially if he made efforts to save his marriage), the purpose of the marriage cannot be reached anymore. On the other hand, the pronounced divorce out of guilt is a sanction for the guilty husband.
The prejudice is caused by the dissolution of the marriage in case the divorce seems to be the only remedy for a life situation that cannot continue anymore because of the respondent’s guilty attitude. Therefore, the situation is the one in which the plaintiff husband does not want the divorce but he is “constrained by the circumstances” to claim for it to put an end to a fact state, to a conflict marriage or which cannot reach its purpose – to make a family. In this context, it is obvious that the dissolution of the marriage by itself will cause prejudice to the husband who wants to continue the family relationship.
Keywords: divorce grounds, compensation, prejudice, remedy-sanction, exclusive guilt.
EL ABUSO EN EL DERECHO DE FAMILIA
THE ABUSE IN THE FAMILY LAW
The paper aims to examine the abusive practice of law in the context of family law, which is becoming more frequent and geographically scaled, taking advantage of the trust that, in a family context, spouses, cohabitants, and relatives tend to have, a relationship in which everyone acts, as a general rule, considering the objective of protection and common care.
Keywords: law, abuse, family law, abuse in law, abuse in family law.
CĂSĂTORIA COPILULUI. “SWEET 16”. O PRIVIRE COMPARATIVĂ
CHILD’S MARRIAGE. “SWEET 16”. A COMPARATIVE VIEW
Carmen Oana MIHĂILĂ
Child marriage is a problem that crosses the globe, religions, cultures or ethnicities. The child-husband, especially the child-wife are found from Europe to Latin America, from the Middle East to South Asia.
The marriage of girls before the age of 18 is a reality that cannot be denied. Most of the time, it is the parents who encourage these marriages, in the hope of financial and social benefits.
They seek to reduce the financial burden facing the family. There is also a misconception that marriage gives women greater protection. Gender inequality, poverty, level of education, family beliefs, natural disasters, the situation of refugees are some of the factors that lead to the perpetuation of this phenomenon. This form of exploitation of girls brings with it complex psychological, physiological and socio-economic problems.
The cruel reality is that for these girls, marriage is not a chance but a violation of their rights, a means of compromising their development and education. Marriage to a child should be seen as a form of sexual violence.
The Universal Declaration of Human Rights provides in art. 16 the free and full consent of the future spouses at the conclusion of the marriage. How can a 12-year old girl’s consent be free and full when she is not mature enough to make such decisions?
The minimum age for marriage is imposed for several psychological, moral and biological reasons. Unfortunately, in many countries such as Niger, Ethiopia, Sudan, Iraq, Brazil and many others, it remains a traditional practice that governments are trying to stop.
Keywords: child marriage, traditional practice, UNICEF, minimum age for marriage.
DIVORŢUL CA URMARE A SEPARĂRII ÎN FAPT A SOŢILOR. ASPECTE SUBSTANŢIAL-PROCESUALE
DIVORCE BASED ON LONG TERM SEPARATION OF SPOUSES. SUBSTANTIAL AND PROCEDURAL ASPECTS
Ioan Ilieş NEAMŢ
In the current paper we aimed to analyze, as exhaustive as possible, from both the perspective of substantial and procedural norms, the problem of divorce based on long term separation of spouses. In this regard, in a preliminary section the attention is focused on the substantial regime, being analyzed aspects such as the fundament of the divorce hypothesis, the notion of separation, the duration of separation and the subsequent substantial implications with a special inclination on the issues of damages resulting from divorce, of compensatory benefit for the innocent spouse and of the sherd home. The second part of the paper focuses mainly on procedural aspect, among which the particularities regarding court complaint and court proceedings and the ambiguity that result from the provisions of Article 934, 3rd paragraph Civil Procedure Code.
In essence, we concluded that the divorced based on long term separation is a special and derogatory form of divorce based on fault and the norms that rule is should be restrictively interpreted, which, for example, excludes the possibility of granting compensatory benefit when the marriage is dissolved on this basis. Furthermore, the court cannot grant the divorce based on the plaintiffs’ exclusive fault, except the situation when he failed a main or accessory court complaint asking for the divorce based on the provisions of Article 373 letter c) Civil Code.
Keywords: divorce, separation, exclusive fault, compensatory benefit, damages, home.
POSIBILE CONSIDERAŢII CONTRIBUTIVE PRIVIND NECESITATEA INSTITUŢIONALIZĂRII CONCUBINAJULUI ÎN ROMÂNIA
POSSIBLE CONTRIBUTIVE CONSIDERATIONS REGARDING THE NEED FOR THE INSTITUTIONALIZATION OF COHABITATION IN ROMANIA
In everyday life this modern form of coexistence is increasingly preferred to the classic form of marriage. Although the cohabitation relationship is not (yet) recognized by law, there is nothing to prevent an unmarried couple from living together and acquiring property together, incurring debts or giving birth to children. From a legal point of view, however, problems can arise in terms of relations between cohabitants, so that a dilemma remains: how and when will these relations be regulated by law?
Keywords: marriage, family, cohabitation, convention, union, engagement, children, goods, legislation, traditional model, modernist model.
LEI N. 14.010/2020 E OS TRATAMENTOS RELATIVOS AO DIREITO DE FAMÍLIA E DAS SUCESSÕES
LAW NO. 14.010/2020 AND CONSIDERATIONS ON THE FAMILY AND SUCCESSION LAW
The work aims to analyse the Brazil legal framework on family law and succession law in the light of the recent Law no. 14.010/2020.
Keyword: Law no. 14.010/2020, pandemic, COVID 19, Brazil, family law, succession law.
ASCULTAREA COPIILOR ÎN CAUZELE CIVILE. GHID DE INTERVIU
CHILD TESTIMONY IN CIVIL LAW CASES. INTERVIEW GUIDE
Interviewing children in civil law cases is a frequent and essential task that judges must undertake. Despite that, only few information or guidelines exist in the literature regarding the practical, concrete methods recommended for obtaining the child testimony. The guide presented here identifies and discusses the main components of an interview: establishing rapport, the narrative exercise, conversational rules, types of questions, and the supportive interview.
Subsequently, these elements are all integrated in a practical example, which illustrates the structure of an interview and offers examples of phrasings and topics that can be utilized when a child is interviewed. In the final part of the guide, we discuss best practices and some behaviors or attitudes that are not advisable.
Keywords: interviewing techniques, interview structure, rapport building, types of questions, best practices.