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The international divorce in Romania

Is there any possibility to choose which law to govern an international divorce? If so, what is the moment until this choice can be manifested?

Of course. Romanian private international law establishes, under the provisions of the New Civil Code, within Articles 2597-2602, the conditions in which spouses may choose the law to govern their divorce, where this possibility appears. The New Civil Code absorbed the provisions found in the draft Regulation (EU) no. 1259/2010 implementing a system of cooperation in the area of the laws applicable to the divorce and limited divorce, known as the "Rome III".

Art. 2597 thus provides that spouses may choose, by mutual agreement, one of the following laws to govern their divorce:

a) the law of the common habitual residence of the spouses at the date of the agreement regarding the applicable law;

b) the law of the State where the spouses last had their common habitual residence if at least one of them  lives there still at the time of the choice regarding the applicable law;

c) the law of the State whose citizen is one of the spouses;

d) the law of the State on which territory the spouses have resided for a period of at least 3 years;

e) the Romanian law.

 The agreement regarding which law to govern the divorce can be registered (or modified) until the date of referral to the authority competent to pronounce the divorce, but if the divorce is done before a Court of law, the authorities can receive proof of an agreement between spouses at the latest until the first hearing at which the parties were duly summoned.

It is useful to know that the agreement regarding the law applicable to divorce agreement be concluded in writing, dated and signed by the parties.

What happens if none of the spouses expresses its choice on the law applicable to the divorce?

In this case, the public internation law establishes that the law applicable to the divorce will be determined objectivele and thus will be:

a) the law of the State of common habitual residence of the spouses at the date of the request for divorce;

b) in the absence of common habitual residence, the law of the State where the spouses had their last common habitual residence if at least one spouse has his habitual residence in that State on the date of filing for divorce;

c) in the absence of the spouse's habitual residence in the State where they had their last common habitual residence, the law of the common citizenship of the spouses at the time of filing for divorce;

d) in the absence of common citizenship of the spouses, the law of the last common citizenship of the spouses, if at least one of them retained the citizenship at the date of the application for divorce;

e) the Romanian law, in all other cases.

There is also the situation where foreign law determined according to the rules above or chosen by the spouses does not allow the divorce or permits it in extremely restrictive conditions. In this case, Romanian law will apply if one of the spouses is a Romanian citizen or is ordinarily resident in Romania at the date of the request for divorce.

Is there a possibility of divorce in a unilateral manner? If yes, what is the applicable law?

The New Civil Code provides for the possibility of divorce by unilateral termination. However, Article 2601 entitled "Recognition of the divorce by unilateral termination" found in the New Civil Code establishes a golden rule, namely that the act that was drafted abroad and which expresses the unilateral will of a man to undo the marriage, without the law of that certain Stat having recognized the same rights to women, will not be recognized in Romania.

Exceptions to this rule require meeting certain conditions, namely: the act complies with all the conditions of substance and form prescribed by the applicable foreign law, the woman accepted freely and clearly this method of dissolution of marriage and there is no other reason for the non-recognition in Romania of the decision of dissolution of marriage in this manner.

If you require specialized legal assistance or advice in matters of international divorce, do not hesitate to consult the list of attorneys within the law firm Darie, Manea & associates who will provide relevant information in this field, if you decide to contact us and will guarantee competent legal counseling.

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