This article aims to present the particularities of the divorce procedure before a notary as it is regulated by the Romanian Civil Code. In these more than three years since this procedure has been introduced in our legislation, more and more people have chosen this procedure in order to put an end to their marriage. The reasons why couples turn to a notary in order to divorce are the swiftness and the less formal character of the procedure compared to the judicial one.
Firstly, I will present the current regulations as well as the previous ones, in order to highlight the reasons that led to the legislative update. Secondly, I will point out the main characteristics of the notary procedure for divorce and its specificities compared to the other two procedures. I will conclude by putting forward my own opinion on the matter.
The notary procedure regarding the divorce was first introduced in our legislation through the Law 202/2010, and it is now part of our Civil Code as well. It is defined as an extrajudicial procedure by which a married couple can divorce in front of a notary public, as long as their request reflects their mutual consent. In my opinion, the two new extrajudicial procedures of divorce (the procedure before a notary and the one before a registrar) are a good alternative for the judicial process, given the large number of cases that are brought before the courts and the lengthy procedures.
I believe that these modern and updated provisions were mandatory for our country. Romania needed to replace the old regulations, enacted by the communist legislation, with new ones, in accordance with the evolution of our society and the new concepts regarding family life. During the communist age, the divorce had an exceptional character (Florian, 2011) and it was allowed only in few restrictive situations. The divorce was seen as a threat for the social order, as an attack to the principles and the morals. Understandably, a consensual divorce as it is stated today by our Civil Code, was inconceivable.
Law 59/1993 eliminated some of the old restrictions concerning the divorce and made the consensual divorce possible. However, this type of divorce had some admissibility conditions: the marriage must have lasted more than a year and the couple must not have had underage children. The consensual divorce is possible, according to the current Civil Code, even if the couple has underage children and regardless of the length of the marriage. Both of the new extrajudicial procedures have the main advantage of celerity. The most important aspect that distinguishes one from the other is that, while the notary procedure is allowed for couples with underage children, the administrative procedure does not allow it (divorce by a registrar).
One of the requirements of the divorce by public notary is the mutual consent of the couple regarding the name that each of them will have after their separation. There are two possibilities: (1) they can keep the same name they used to have during the marriage or (2) they can choose the name they had before getting married. If they do not agree on the matter of their future last name, the public notary will dismiss their divorce request.
In the case of couples with underage children, according to our Civil Code, their agreement on several issues is mandatory. These issues are: the exercise of the parental authority by both of them, the children’s home after the divorce, the ways used for keeping the personal connections between the separated parent and his/her child, as well as the contribution of the parents at the costs of growth, education and professional training of the children. The absence of this agreement will also lead to the dismissal of the divorce request.
Regarding the territorial competence of the notary, the consorts can choose between the notary from the place where they married, or from the place of their last common home. In my opinion, this is another advantage of the notary procedure compared to the judicial one, as, in that case, the couple is bound to select a court in a certain order, as settled by the Civil Procedure Code (Florian, 2011). After a period of thirty days since the couple expressed their will to divorce in front of a notary public, they have to come personally and reaffirm that they maintain their choice. This thirty days term is both mandatory and prohibitive (Gavrilescu, 2011), as, during this period, the marriage cannot end. The purpose of this period, in the law-makers’ view, is to allow the couple to reconsider their choice. This term is the best proof that the law-makers did not mean to minimise the importance of the family through these updates. Their only purpose was to adapt the laws to the mentality of the society and its new needs.
In my opinion, the law-makers have taken an inspired decision by introducing two new procedures of divorce, proven by the fact that more and more Romanians are choosing one of them when they decide to separate. The divorce before a notary is the best option for two consorts who agree to end their marriage. The Romanian society needed an assembly of rules capable of responding to the current views on marriage and family matters in general. Therefore, I believe that these new legal provisions on family matters are a step forward for the legislative process. I cannot agree with the opinion voiced in the doctrine which claims that overly permissive provisions could lead to the decline of the importance of the family. The existence of multiple ways to end a marriage does not increase the number of divorces and, conversely, restrictive divorce procedures will not determine people to be aware of the true value of family. For too many years the Romanian people have been the slaves of limited and obsolete laws. It is time to open our minds to the changes that have come to pass around us, and let them be reflected in our legal system.
