Actually, when we think of marriage, we imagine the day we say “yes” as a romantic and full of love moment in our life, the day we become the husband or wife of the chosen one, and don’t care of any other “implications”.
But what happens next? What about the personal goods we own before marriage and bring into our future relationship? Will my bicycle become my wife’s, as result of getting married?
What happens to the assets that each family member owns and how they manage them are aspects regulated under each of the marriage regimes that can apply in Romania. We will analyze each of them below, and will explain most important implications you should be aware of.
What are the marriage regimes in Romania, and why should I care?
In the Romanian law practice, there are certain established marriage/matrimonial regimes that determine which assets are commonly owned by spouses, and which assets are separate during their marriage time. This means that in practice not everything that is yours becomes your spouse’s as well, after marriage, depending on the chosen type of marriage you are able to opt for.
As basic rule, you should know that a matrimonial regime cannot produce its effects outside of an officially concluded marriage (so you must first get married to be able to apply a certain matrimonial regime) and no marriage can exist without applying a certain matrimonial regime.
How do I know which type of matrimonial regime to apply into my Romanian marriage?
To be able to know the practical conditions that apply to you under a certain marriage regime, you must first understand what these regimes are, and how each of them works in practice. On the other side, for one regime to apply to you, you don’t have to expressly opt for one. If you don’t go for an option, a certain marriage regime will apply by default.
Nevertheless, according to the Romanian Civil Code (art. 312 para. (1)), as part of a Romanian marriage, spouses may opt for one of the following matrimonial regimes:
The first one mentioned above (the legal community regime) is the “by default” applicable one, and applies directly whenever the spouses do not expressly choose anyone of the other two regimes (separation of property or conventional community), which must be expressly chosen in writing to apply.
Now that we’ve clarified a bit on applicability of the legal community regime, let’s see when the other two would apply, and how. We mentioned above that the separation of goods and the conventional community regimes are “conventional” ones. What this means is simply that these two regimes can be applied only through convention signed between the spouses.
In practice, this means that, if you want to apply one of these regimes to your marriage, you have to go together with your future spouse to a public notary office and sign an agreement by which you determine which assets you want to own separately, and which assets will be commonly owned.
If such a written convention is not signed and formerly notarized/legalized, then your assets will be by default subject to the legal community regime (you can find more details below on what this regime involves).
Let’s see in more detail what each one of the 3 marriage regimes entails.
1. The legal community regime
As mentioned above, the legal community regime applies by default, if the married couple does not expressly opt for one of the other two “conventional” regimes.
As per the Romanian Civil Code (art. 339- art. 359), as part of the legal community regime, the rule says that all the goods acquired by the spouses during their marriage time become common property (i.e., they are legally owned 50%-50% by each of the spouses).
Nevertheless, this rule has also an exception: each partner’s own goods, acquired before the marriage, will continue to be separately owned.
Of course, people do not only have assets, they also have debts. Under the legal community concept, spouses have their own debts (this is the rule), and common debts (the exception). Maintaining this structure of the patrimony can be justified by the need to keep a balance between assets and debts that the two spouses have in common and those they own separately, so that any abuse is limited.
2. The conventional community regime
As regulated in the Romanian Civil Code (art. 366 – 368), this regime is based on a marriage agreement concluded before or during the marriage of the two. The marriage agreement is an authentic document that the spouses must sign, and legalized by a notary public.
IMPORTANT: The marriage agreement must fully comply with the form required by law – i.e., authentic notarized document – in order to be considered valid. Thus, just a sheet of paper signed between you and your spouse on a casual evening is NOT a marriage agreement or a convention in the form accepted by the law.
Now that we have clarified what the marriage agreement is, let’s see what you should write in this document.
Basically, through the marriage agreement spouses choose the conventional community by agreeing on certain exceptions they want to make from the legal community regime (the first regime described above).
What are the exceptions they can agree upon? Well, article 367 of the Romanian Civil Code clarifies the exceptions the marriage agreement can decide upon:
3. The separation of goods regime
This one is quite explicit by its name. The basic rule is separation of all goods between husband and wife. The applicable conditions regulating this regime are stipulated in art. 360 – 365 of the Civil Code. Same as the conventional community regime, this regime is also based on a matrimonial agreement, or, in certain cases, on a court decision.
The court decision can be issued whenever one of the spouses requests it, but with solid grounds – e.g., when the other spouse seriously endangers the patrimonial interests of the family (such as spending family money on gambling, alcohol, etc.). In a court decision case, the regime of separation of goods applies more as a measure of protection.
And, same as in the conventional community case, the marriage agreement must be signed by both spouses and legalized by a public notary in order to take effect. In practice, the procedure says that the notary should do an inventory of each spouse’s own goods, which will be attached to the marriage agreement.
Under this regime, each spouse agrees to keep his or her own goods acquired both before and after the marriage. Thus, in what regards the assets in property, each of them keeps greatest independence under this type of matrimonial regime.
As per the applicable law, both the assets and liabilities of the spouses are separated, so that neither of them is obliged in any way to the assets or debts of the other spouse (as it is logical, since each wants to keep his own goods). Although there is no community of goods, as in the other two regimes, this regime does not excluded though the possibility that the two spouses have also goods under common ownership.
