Cauzele de nulitate ale căsătoriei

I ABSTRACT

As the Roman family was at the centre of the Roman Civilization, the status of women relating to the institution of Marriage needed to be well established in order to bring order to the vast scope of social realities from within the Empire. Comprised of a complex social

and juridical set of norms, the status of women within the institution of Marriage instilled life into diverse social realities, from aspects like inheritance law to the role of the female figure in the mystic representation of the Roman family. The present paper aims at establishing general guidelines regarding the juridical status of women, referring to each of the key roles fulfilled by women within the Roman family and their relation to the institution of Marriage.

Given that the new Civil Code, based on which the monistic concept of regulating private law relations in a single code is in force since 1 October 2011, changes not only the family law institutions but also the other institutions belonging to them private law it is necessary to develop a new course of family law. The new Civil Code dedicates to family relations in the Romanian private international law Chapter II entitled Family (Article 2585 - Article 2612), which is in turn divided into sections, paragraphs and articles of the VIIth Book of the Private International Law. Section (1). is titled The Marriage of the VIIth Book of the Private International Law provisions contains art. 2588 of the Civil Code with the marginal name The law applicable to the nullity of the marriage. This article states: „The law governing the legal requirements for marriage is applicable to the invalidity of the marriage and the effects of this nullity. The nullity of a marriage concluded abroad in violation of the formal conditions may be admitted in Romania only if the sanction of nullity is also provided in the Romanian law” The article aims to answer the following questions: 1. What law do we apply to the invalidity of the marriage and the effects of this nullity? 2. How is the marriage invalidated in Romanian law?

The nullity of a marriage are two types of forms: relative nullity and absolute nullity.

The article proposes an analysis of the legal system of absolute nullity of the marriage. The first part presents the main aspects of the marriage: concept, settlement and living conditions. In the second part of the article are discussed the main rules governing the action for absolute nullity of marriage, regarding: people who have capacity to act in order to observe the nullity, the imprescriptibility of action and the possibility to confirm a marriage that has been hit by an absolute nullity.

An marriage refers to that marriage at the end of which spouses' consent was not honest, but simulated, meaning that the marriage pursued foreign interests other than the real purpose, which is to starAt a family.

In an arranged marriage both spouses may have had the same interests, not performing the marriage for the purpose of starting a family, case in which the arrangement is bilateral or there are cases in which only one of the spouses wanted to obtain secondary outcomes in that marriage or the fraud of the law, and the other spouse may have wanted to perform a real marriage, this being a unilateral arrangement. In this case, for the husband in good faith, the marriage will not be arranged but a real one. The arrangement of the consent must be proved by the applicant and may be inferred from the interpretation of different situations, facts or previous circumstances or concurrent timing of marriage, clearly showing that the defendant expressed an arranged consent. The proof of the arranged aspect of the marriage can be done by any means.

Beyond this consequence a marriage of convenience implies the sanctions of absolute nullity.

By legal system of absolute nullity of an marriage we understand all the rules that govern the action to establish the absolute nullity of the marriage, especially concerning: people who have the capacity to act in observing the nullity, the imprescriptibility of the action and the possibility to confirm the marriage is affected by absolute nullity.

The absolute nullity is the penalty for not respecting some legal provisions with a prohibitory aspect which protect the general interest. That is why, in order to ensure respecting of these interests, the law gives to all those concerned with it the right to bring the action in nullity. In this sense, are the provisions of the art. 296 of The New Civil Code, which means that any interested person can institute proceedings to show the absolute nullity of the marriage. Under this article the marriage nullity can be invoked by the husband who consented to marriage and to start a family, but also by the spouse whose consent was not honest and who is guilty for the arranged aspect of the marriage because no one can be forced to persist in continuing an illegal marriage. The husband who had, by performing this marriage, any other purposes than starting a family will be able to invoke the nullity without being opposed the maximum “nemo auditur propriam turpitudinem allegance”, as it is not for him to claim a benefit, but to satisfy a public interest and to get out of an illegal situation or the interest is too important for the action to be dismissed. Beside the title spouses of the right to action in observing the absolute nullity, can be their relatives who can eliminate from the legacy the surviving spouse, spouses’ creditors and also the prosecutor. With regard to the latter, art. 296 from the final thesis of the New Civil Code provides that the prosecutor cannot fill in the action after the dissolution of the marriage, except the case when he would act to defend the minors’ rights. Due to current conditions of fictional marriage it is very difficult, even impossible, for the third parts or the prosecutor to ask or to obtain the nullity of the marriage, if it is not requested by at least one of the spouses36.