„LUCIAN BLAGA” UNIVERSITY OF SIBIU “SIMION BĂRNUŢIU” FACULTY OF LAW

DOCTORAL DISSERTATION

~ Marriage Nullity ~

Sumarry

Scientific advisor Professor Dr Alexandru Bacaci

Doctoral candidate Dan­Adrian Doţiu

SIBIU 2008

1 Chapter 1. General aspects of the institution of marriage nullity

1.1. Introductory concepts Among all judicial acts setting of the existance of the human being, none has a greater importance than those related to marriage. Having a universal character in space and being constant throughout history, the marriage is, at the same time, diverse in geographica space and variable in time. It means even the family origin 1. The Romanian law giver has foreseen by imperative dispozitions the root and formal conditions for entering into a marriage. Being a solemn legal transaction, the marriage cannot be entered into under any conditions. At the same time, the future spouses must present the proof of fulfilling the basic conditions foreseen by the Family Code 2 . The check by the registrar of the deeds presented by the future spouses and of eventual opposition to the marriage and the good faith presumption, means, as a principle, warranties of a valid marriage. In spite of these, the law giver has not excluded the possibility of beaching the legal requirements irrespective of the reasons.That is why by the provisions of Articles 19­24 Family Code, the law giver has regulated the institution of abolition the marriage if at enterin into marriage the root and form conditions were not fulfilled or there was an impediment 3. In this dissertation we intend to approach the problem of marriage abolition based on the in force laws and doctrines. We will present some aspects of material and process law relating to this institution and will finally show the effects of marriage nullity and will reserve a chapter to the putative marriage. At the same time, we will present a concise comparison between our legal system and other world wide spreaded systems. Out of all definitions of nullity given in the specialist literature we will retain that showing that “nullity is the civil law sanction which excludes from the civil law legal transactions the effects which are against the behaviour rules contained in legal regulations for its valid conclusion” 4 .

1 “The family is the base social form, grounded on marriage and consists of husband, wife and their descendants” – Explicative Dictionary, Didactică şi Pedagogică Publishing House, Bucharest, 1975. Ethimologucally the word “family” comes from the Latin word familia(ae), which in the Roman law was the group of free people and slaves standing under the power of pater familias and living in the same domus. M.Jakota, Drept roman, vol.II, Ed.Fundaţiei Chemarea, Iaşi, 1993, page 232 2 Law no. 4 of 1953 as republished (Family Code). The text of Law no. 4/1953, republished in the Official Gazette no. 13 of 18 April 1956, has been updated based on the amending laws published in the Romanian Official Gazette, Part I, up to 23 June 2004: Law n0.11/1990 (repealed by Urgent Ordinance no. 25/1997 of the government); Law no.48/1991; Law no.59/1993; Urgent Ordinance no. .25/1997 of the government (repealed by Law no.273/2004); Law no.23/1999; Decree no.349/2001 of the Constitutional Court; Law no. 272/2004.

3 A.Bacaci, V.C.Dumitrache, C.Hageanu, Dreptul familiei, ed. a II­a, Ed.All Beck, Bucureşti, 2002, page 20 for an analyses of the delimitation of root conditions from the impediments for marriage.

4 E.Lupan, Drept civil. Partea generală, Ed.Argonaut, Cluj Napoca, 1997, p.232; Gh.Beleiu, Drept civil. Introducere în dreptul civil, Ed. Şansa, Bucureşti, 1998, p.248 2 The marriage has such a great social and personal importance so that is fully valid to set some imperative root and formal condition for conclusion of marriage. The distinct judicial approach applied to the nullity of marriage is revealed by the following aspects: reduction of nullity incidence by not sanctioning the marriage concluded by not fulfilling the prohibitive root conditions or in the presence of prohibitive impediments; the legal possibility of covering some ablolut nullity cases of marriage; reduction of prescription time in the actions for marriage annulement, attenuation of the effects of marriage abolition towards the spouse in good faith by regulating the putative marriage; remouval of the marriage nullity effects on the children coming out from a marriage affected by nullity. The classification of nullities helps a better understanding of the institution of marriage nullity. This helps also the judiciary practice which, by knowing the distinctive and commune features of nullities, is helped in solving the cases coming out from judgement. The classification is done based on some criteria and the type of rights protected by the regulation breached, the extend of the nullity effects, the way it is reflected in the legal regulations, the type of validity condition not taken into consideration at the date of conclusion, type of exploitation, etc. Upon the interest protected by the legal rule breached there is an absolute and relative nullity. The absolute nullity is that form of inefficiency appearing in the case of breach of one law provision protecting a general interest of public order at the moment of conclusion of an instrument. The features of this nullity are resumed as follows: the nullity may be claimed by any interested person even ex officio by the court, may be claimed at any time, both as an action and as an exception and basicly it cannot be coverd by confirmation or in any other way. The relative nullity, also designated in the case law as protection nullity, is that form of inefficiency sanctioning the breach of one law provision protecting a personal interest at the moment of conclusion of an instrument. The features of this nullity are: basiclly, the nullity may be claimed only by the protected person whose interest has been violated by not taking into consideration the legal regulation at the moment of conclusion of the instrument, it may be claimed only within the extinctive prescription time, that means that the action may be prescripted and can be expressly or tacitly covered by those entitled to claim it. Upon the criterion of the distructive effect of the sanctions there may be discerned total and partial nullities. The total nullity, also designated in the specalised literature as integral nullity, fully abolishes the instrument and is applied when no effect produced or likely to be produced can be kept. In our legal law system the total nullity means an exception. The partial nullity abolishes only a part of the effects of the civil instrument keeping only those not contravening the law. In our law system the partial nullity acts as a rule. Another classification criterion of nullities is that of validity condition not full­ filed at the conclusion of the instrument and, in this respect, there exist a distinction between base and formal nullity. As it is shown by their names, the base nullity is sanctioning the not fulfilment of a base condition (capacity, agreement, object, cause) and the formal nullity is sanctioning the not fulfillment of the formal conditions required for the validity of the instrument. 3 A last criterion, which is of interest from the point of view of family law, as reveled in the next chapters of this dissertation, is the way in which these nullities result from the formulation of the law. In this respect a distinction between expresse and virtual nullities is made. The express, textual nullity is that explicitely resulting from a law text, as the most nullities of the Romanian law are. The virtual nullity is that indirectelly but certainly resulting from the law text, either by the wording or the finality of the text.

Chapter 2. Relative nullity of marriage

2.1.Introductory concepts The conclusion of marriage is subject to some legal requirements in order to establish a durable, healty family, both from physical and moral point of view, able to fulfil its functions within our society. The legal requirements for conclusion of marriage are also ment to warranty the expression of the free and aware consent of the future spouses, as according to Article 48, paragraph 1 of the Romanian Constitution “the family is based on the freely expressed consent of the spuses, on their equity and on the right and obligation of the parents to provide upbringing, education and instruction for the children”. Non­observance of these law requirements implicitelly leads to the nullity of the instrument of marriage and has, in most cases, as effect its retrospective abolition. Not even now, has the freedom of entering into marriage an absolute character, being firstly limited by the root and formal conditions imposed by law, but also by the requirements to be fulfilled according to the special regulations 5. According to the apprehension of the law giver, the abolition of marriage means a drastic solution and that is why the interpretation of the law provisions regarding the nullity of marriage has to be done in the most rigorous way possible in order to ensure that the abolition is not only done when the law expressly requires or is required by the public, social interest protected by that law. Because it is a drastic measure, the law giver has amply regulated the formali­ ties prior to entering into marriage, has introduced the solemnity and publicity of its celabration providing the registrar with the right to refuse the conclusion of the marri­ age whenever is find out that “ legal requirements are not fulfilled” (Article 15 Fami­ ly Code), irrespective if diriment or prohibitive requirements comes into disscution 6. The nullity of marriage is regulated by Chapter II of Title I of Family Code, respectively by Articles 19 and 24. The provisions contained in these texts have a de­ rogatory character from the common law in the matter of nullity.They are replenished in the exend needed and within the compatibility limits, with the civil law regulation

5 Law no.80/1995 published in the Official Gazette no.330 of 24 December 1992 which at Article 29, paragraph 1, letter f contains provision regarding the marriage of military officers : „ According to the law entering into a marriage is a free act. The marriage to a stateless person or not having exclusively the Romanian citizenship is conditioned by the prior approval granted by the Ministry of National Defense”. In this respect, before the Revolution, the approval from the president of the Socialist Republic of Romania was needed pursuant to Article 42 of the Instructions Orders no. 190/1970, amended by Order no. 80/1975, regarding the usage of the Decree no.278/1960 and of the Decree no. 1091/1960 of the Ministries Council. 6 I. Reghini, Dreptul familiei, Note de curs, Universitatea Ecologică Dimitrie Cantemir, Târgu Mureş, 1994, p.48 4 regarding the nullity of instruments. The derogatory character may be exlained by the purpose of the law giver to ensure the stability of the family relationship. The nullity cases expressly foreseen by law are specified at article 19 Family Code “the marriage concluded under the breach of the provisions of Articles 4,5,6,7, letter a, 9 and 16 Family Code is null and void” and respectively Article 21 Family Code “the marriage may be voided upon request of the spouse whose consent has been alterated by error regarding the identity of other spouse, by trickery or violence” In the family law the nullities have an absolute and relative character and there are some differences as compared to common law. In some cases, due to the concern to keep the marriage effects the absolute nullity may not be confirmed and in the same way is removed the retroactive effect of nullity, in opposition to common law, in the case of putative marriage, but only for the spuse in good faith.

2.2.Relative nullity cases In the family law valid nowadays the consent vices, respectively error, cheat and violence, entail the relative nullity of the marriage. In the field of marriage, the infringement /vice of consent is not applicable 7 . 2.2.1.The error 8. Upon the institutional character of the marriage and its prepon­ derant personal, non patrimonial nature, the only error that may be imagined in this field are: the in negatio, more exactly the error regarding the objective content of the declaration of intention and the in personam error belonging to the consent vice error. Taking into consideration the obstacle error category, if one can imagine a person giving consent by ignoring the fact of getting married, the in corpore or in causam error may not be imagined as the error and the reason for marriage have an abstract, general and impersonal character (a union between man and female). If we take into consideration the consent vice error in the case of marriage one can imagine only the in personam error which also results from the provisions of Ar­ ticle 21, paragraph 1 Family Code, which stipulates that this error has as consequence the relative nullity of the marriage only if it refers to the physical identity of the other spouse. Being by excellence concluded intuitu personae the marriage has to be abolished if a person has committed an error. Based on the care and consideration for the stability of marriage, the law giver has admitted the error as consent vice only under exceptional circumstances, respectively only if it occurs regarding the physical identity of the other spouse 9 . 2.2.2.The dolus 10. The civil law code does not give a definition of the dolus but the concept is described in the stipulations of Article 960, paragraph 1 Civil Code, which sets forth that “the dolus is a reason of nullity when artful means were used by one of the parties and it is obvious that without these machinations the other party had not entered into contract”.

7 The breach does not mean a consent vice in the matter of family law because it appears as a obvious disequilibrium of prestations within the instruments having a patrimonial content and the marriage by essence is a non­patrimonial instrument. 8 The error is a false, inaccurate representation of reality at the moment of entering into an instrument. Upon its importance on the consent of the party it may be : error, obstacle, consent vice error and error regarding other elements.

9 T.R. Popescu, op.cit.pag. 289­290, Trib.Supr., Secţ.civ., Dec.civ.nr.499/1977, în R.R.D. nr.10/1977

10 The dolus is defined in the specialists literature as misleading of a person by using of tricky or malicious means in order to make her to enter into a particular instrument. That means that the dolus is a produced error and not a spontaneous one as the normal error is. 5 By combining the two approaches (the moral one of the author of the abuse and the psychological one of the victim) the features of dolus may be deducted, i.e. consent vice consisting of a produced error which may not be superposed on a spontaneous error. As shown above, the analytical study of this provision identifies two elements in the content of dolus: the first one is a subjective element consisting of the intent of one of the parties to delude the other party at the moment of conclusion of an instrument and, the second one, an objective element consisting of the use of artful means in order to determine the dolus victim to express consent. The dolus must cumulative fulfil two conditions in order to be considered as a consent vice: The error caused by dolus should have been done at the moment of conclusion the instrument, i.e. to have an impact on some determining elements for conclusion of that instrument 11 and the dolus must be generated by the other part into instrument. The assessment of the determining character of the dolus is always done in concreto taking into consideration circumstances as: experience and age of the victim, type of means etc. The provision of Article 21, paragraph 1 Family Code do only state artfulness. i.e. dolus in the current terminology as a consent vice at conclusion of marriage. That means that at the abolition of marriage due to dolus apply the provisions of the common law in this matter, of course by adapting them to the specific character of marriage. The dolus leads to abolition of marriage, in all cases in which, by intention or omission, one of the future spouses has determined the other spouse to conclude the marriage by fraudulent means and that is why the caused error has determined the marriage consent. The judicial practice shows that “ the error caused by dolus may be used on a larger scale as it can refer also to other important elements regarding to the formation of the consent of the future spouses to conclude the marriage”. A special issue, approached by the Romanian legal doctrine, is the issue regarding defining silent as dolus. Taking into consideration that only the show of willingness produces judicial effect, the natural conclusion should be that silent by itself is not a dolus, but as an exception it may constitute part of dolus if the reticence refers to some elements to which the spouse guilty of dolus should have informed the other spouse before conclusion of the marriage. But in such a case the intentional ele­ ment is hard to be proved as the silent may be also caused by omission or oblivion 12. 2.2.3.Violence. By violence, as consent vice, it is understood the threat of a person with an evil meant to produce a fear to determine her to enter into an instru­ ment which would otherwise not have been concluded.The law giver intended to give a wider meaning to violence, when this concept is used in legal proceedings, and to comprise any abnormal or unjust pressure on the will of a person in order to deter­ mine her to enter into a legal transaction or to agree to its conclusion. The term of "violence" means hence the pressure exerted not only as physical brutality but also as moral and psychical brutality.

11 Trib.Supr. Secţ.civ. Dec.civ.nr.150/1979, în I.G.Mihuţă, Repertoriu....pe anii 1975­1980.

12 D.Chirică, Contracte speciale civile şi comerciale, vol.I, Ed.Rosetti, Bucureşti, 2005, p.268 6 By adapting the above provision to the issue of marriage it comes out that the marriage concluded under violence, even if the violence has been put on one spouse by other person than the other spouse, stays under relative nullity. If the spontaneous or produced error vitiates the consent in its intellectual or reflexive dimension because it has not been learnedly expressed, the fear induced by violence vitiates the consent in its willed or freedom dimension because it has been given under constraint in order to get free from a more worse evil. With other words, not any simple fear leads to the abolition of marriage, but those having certain importance for the person involved. The evaluation is done in concreto by the court, because certain threat on a person does not necessarily produce a fear on all persons. In spite of the fact that in family law the violence as consent vice is analysed pursuant to the provisions of the common law, there are some differentiations as compared with the latter, which result from the way in which the content is expressed at the time of conclusion of the marriage. Thus, as by common law, both physical (vis) and moral violence (mentus) may have as result the annulment of the legal tran­ saction, in the field of marriage we can usually speak only about the effects of moral violence. Taking into consideration the formal conditions under which the marriage is concluded, it can be hardly imagined that the consent is given under physical violence and “bride abduction” is not anymore an impediment for conclusion of marriage as it was in the old Romanian law.

2.3.Marriage annulment proceedings 2.3.1.Competent court Pursuant to Article 1 Code of Civil Procedure, the first court has jurisdiction to judge the claims for marriage annulment 13 , i.e. that the first court is fully competent for judging in the first instance this type of claims. The judicial decisions regarding the nullity of marriage do not lay under the principle of the relativity of civil law judgements but have an absolute value with erga omnes effects by their nature and this changes the marital status of the spouses which from married become unmarried.This comes explicitly out from the provisions of Article 23, paragraph 2 of Decree no. 31/1954 pursuant to which the judgements regarding the marital status apply to third parties with the only reserve, if it is justified by an interest, that they are entitled to prove the contrary. The court competent for the place of residence of the defendant has territorial jurisdiction for judgement of the claims for annulment of marriage. The focused text is without any doubt one of the most conservative texts by applying a postulate adagio of the Roman law, to the canonical and common law actor sequitur forum rei ­the petitioner notifies the defendant's court. This is an universal rule having a continuance hardly to tie. The basis of the principle actor sequitur forum rei may be represented by the following arguments: within the framework of the judicial balance between the law subjects the relative presumption that nobody owes anything to anybody must be preserved; up to proving the contrary we have to assume that externals concord with

13 In the civil process law the competence is defined as the capacity recognized by law of a court to or other jurisdiction body to judge a particular claim (see V.M.Ciobanu, Tratat teoretic şi practic de procedură civilă, vol.I, Ed.Naţional, Bucureşti, 1996, p. 147; I.Deleanu, Tratat de procedură civilă, Ed.Europa Nova, Bucureşti, p. 319) 7 the judicial reality; the liberty to freely chose the competent court that might be recognised to the petitioner might be an abusive mean for using his right of process 14. 2.3.2. The parties The claim for relative nullity of marriage may be brought only by the spouse whose consent has been vitiated. Their heirs are not entitled to continue the claim for relative annulment as this is a strictly personal matter and the law does not grant the heirs the right to continue it 15. Whenever the law giver wanted a civil status claim to be continued by the heirs, this was expressly foreseen as it has been foreseen in the case of setting forth of the filiation towards the mother. As it is a personal claim, the creditors of the spouse whose consent has been vitiated are not entitled to bring an indirect claim. As far as the intervention of third parties in an action for annulment of marriage concerns, in a case has been adjudged that “The main intervention has a limited use in the case regarding the state and capacity of persons as in this field the civil claims have a personal character and for this reason they can only be used by the holder of the right claimed. Due to the strictly personal character of the claim, the main intervention is not admitted in the applications regarding annulment and dissolution of marriage. The non­admissibility of main intervention in such actions is based on the idea that a third person is not allowed to rise own claims in relation with the action object” 16. As far as the action of the public prosecutor concerns, it has been decided that he/she is not allowed to bring an action as he/she is not allowed to estimate the opportunity of the claim for marriage annulment in place of the spouse whose consent has been vitiated. As a matter of fact, this comes out from the provisions of law, i.e. Article 47, paragraph 2 of Decree no. 32/1954 associated with Article 45 Civil Law Procedure Code, which do not allow the public prosecutor to bring claims having a personal character 17. 2.3.3. Extinctive prescription period The claim for relative nullity of marriage is prescribed within 6 month from the date of cease of violence or from the date of finding out the error or dolus. An interesting aspect of this case is that the claim for marriage nullity is hindered by the prior dissolution of marriage by divorce. In this respect has been adjudged 18 that “the claim for marriage annulment or nullity cannot be admitted even if prior to passing a final judgement the bonds of marriage have been dissolute by divorce”. The marriage nullity or annulment may be decreed only for causes occurred prior the conclusion of marriage and does not have a retroactive action. The divorce may be decreed only for subsequent causes and produces effects in the future. That is why, between the annulment claim, on one hand, and the divorce claim, on the other

14 I.Deleanu, op.cit.p.433

15 It has been decided that a relative is also entitled to claim the marriage nullity in order to remove the competition of the surviving husband (Trib.Supr., Dec.civ.nr.1805/1972, in C.D. for 1972, p.193.

16 C.S.J. Secţ.cont., Dec.cont. nr.1890 din 15 octombrie 1992, în „ D.C.S.J.” 1990­1992, pag,248

17 In spite of this, some courts have passed contrary judgments in this regard: Trib.pop.Raion Sighişoara, sent.civ.nr.373 din 31 martie 1961, cu notă critică de C.Tuşinschi, în L.P.nr.12/1961, pag.103

18 C.S.J., Secţ.civ., Dec.civ.nr.1602 din 4 septembrie 1992, în D.C.S.J. din 1990­1992, pag.164 8 hand, there is no link, and the use of the first is may not be conditioned by the not use of the latter. 2.3.4. Evidentiary proceeding and means of proof The petitioner, i.e. the spouse whose consent has been vitiated, is in all cases put under the obligation to present proofs. The evidentiary proceedings consisting in proving the circumstances, i.e. the existence of consent vice at the moment of con­ clusion the marriage as an instrument, is allowed to be performed by all legal means. 2.3.5. Judgement The absolute nullity of the marriage must be ascertained (Article 111 Civil Procedure Code) and not decreed. The absolute nullity may be claimed by main or incidental way within a process having an other object (e.g.: divorce, distribution of family propriety) and even ex officio by the court. The judgements passed in the actions for marriage annulment do create rights and may be claimed erga omnes as they change the civil status of the persons being married and the civil status has an indivisible character, i.e. it does not differ as related to the persons taken into consideration. Pursuant to Article 44 letter c of Law no.119/1996 in the certificates of birth and marriage of the spouses are recorded remarks regarding the change of their marital status occurred as a consequence of a court decree setting forth the absolute nullity of their marriage.

Chapter 3. Absolute nullity of marriage

3.1.In the family law valid nowadays, the following circumstances bring the absolute nullity of marriage: 3.1.1.Infringement of the law provisions regarding the marital age (Article 19 and Article 4 Family Code). The age permitted for man and woman to marry is a conditions set forth by law based on customs, demographic goals and the biological and spiritual maturity needed to establish a family. The regulation regarding the marriage age is variable from nation to nation and this explains also the differences existing among the laws of world states 19. Pursuant to Article 19 Family Code, the marriage concluded under infringement of the provisions of Article 4 Family Code is void, i.e. the marriage concluded by the impuber man (who has not attained the age of 18 years) or by impuber woman (who has not attained the age of 16 or exceptionally the age of 15 years) and furthermore the marriage of both impuber man and woman is void. This different regulation for the legal marital age of woman and man has been considered by some authors 20 as a discrimination of man because this is a flagrant infringement of the sexes equality principle and even the principle of equity of

19 Pursuant to Article 10 Polish Family Code „ the man is not allowed to marry before attaining the age of 21 years and the woman before attaining the age of 18 years”, in spite of the fact that full capacity of action is reached for moth men and women at the age of 18 years. 20 T.Bodoaşcă, Dreptul familiei, Ed.All Beck, Bucureşti, 2005, p. 74 9 spouses at conclusion of marriage as stipulated in the Constitution 21, Family Code 22 and many international regulations 23. Although the absolute nullity comes into discussion, pursuant to Article 20 Family Code, it may be accepted if the spouse who was out of legal age has attained this age at the moment of setting forth the nullity, if the wife has born a child or if the wife get pregnant during this span. In the Romanian law does not exist an upper age limit for conclusion of a marriage, that means the a marriage may be concluded up to old age and even in extremis. In such chases there are in fact legalized situations already existing 24 . At the same time, there has not been foreseen an upper limit of the age difference between the future spouses and that is why a marriage is valid irrespective of this aspect, but some authors 25 believe that an extremely high age difference should lead to the conclusion that the marriage will be a shame one. 3.1.2.Bigamy 26 (Article 19 and Article 5 Family Code) In the family law, by bigamy, as cause for the nullity of the marriage, is meant the conclusion of marriage by a person already married and there are described both the so­called bigamy and the polygamy 27 and polyandry 28 cases. The bigamy has a special social gravity as by it is breached the public order principle of monogamy and a moral situation occurs which severely damages the social cohabitation relationship within the family and that is why it is double sanctioned, with absolute nullity of the second marriage and punishmment according to the criminal law 29 of the bigamous husband and of the person knowing that she marries a person already married. For the bigamy to exist, it is needed the first marriage to be concluded and to be valid, i.e. not to be void, or to ceased by death or court decree as death of one of the spouses, not to be dissolute by divorce as of the time of the subsequent marriage 30. There is of no relevance the fact whether or not the spouses in the first marriage had normal family life or they were separated de facto. 3.1.3.Affiliation (Article 19 and Article 6 Family Code) The marriage entered into by direct or collateral relatives up to the 4 th degree, also included, is sanctioned by absolute nullity due to biological and moral reasons. Pursuant to Article 45, paragraph 1 Family Code, the affiliation is the blood link based on the lineage of a person from other person or on the fact that more persons have a common ancestor. In the first case is meant a direct relative and in the second case a collateral relative. The direct relative is an ancestor or a descendant.

21 Article 48 – Family –paragraph 1”The family is based on the freely expressed consent of spouses, on their equity and on parents’ right and duty to provide upbringing, education and instruction to the children”. 22 Article 25 “The man and woman have equal rights and obligation in marriage”. 23 Universal Declaration of Human Rights – adopted by the General Assembly of the United Nation on the 10th of September 1948 ­ Article 1 “ All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. 24 A.Bacaci, V.C.Dumitrache, C.Hageanu, op.cit., p.22 25 I.P.Filipescu, op.cit., p.19 26 Word coming from the French word bigame, lat.bigamus, meaning a person having two wives or two husbands, guilty of entering into two parallel marriages. 27 A type of marriage occurred at the same time with patriarchal slavery that can be found even today at Muslim people in which a man is entitled to marry more women at the same time. 28 Type of marriage still accepted by some tribes and blamed by the modern world in which a woman is entitled to marry more men at the same time. 29 Article 303 Criminal Code , paragraph 1” Entering into the marriage by a person already married is punishable by imprisonment from 1 to 5 years”, paragraph 2 “ The unmarried person who marries to a person by knowing that this person is married is punishable by imprisonment from 6 month to 3 years ”, paragraph 3 “The acts foreseen in this article are not punishable if the first or the second marriage has been declared as void for other reason than bigamy ”. 30 C.S.J., Secţ.civ., Dec.nr.1572/1995, în Dreptul nr.3/1996, p.85 10 The Article 6 Family Code does make no difference between the de facto and legally established affiliation, but pursuant to Article 15 Family Code, the registrar is entitled to decline the ascertainment of conclusion of marriage if based on the checks he/she must do, of the oppositions received or existing information, he/she deems that the law requirements are not fulfilled. 3.1.4.Adoption (Article 7 Family Code) The adoption ( or souls affiliation of children as it was named in the passed and it is still named in the colloquial language) is part of the good traditions of the Romanian people for taking care of the children who lost their parents or of those in spite of having parents do not enjoy the needed care. As a consequence of adoption, affiliation relationship 31 occurs between the individuals stipulated by law and in this way is created the civil affiliation. Both types of affiliations, both the natural and the civil affiliation are manifested by a legal relationship which is based in the first case on a blood link and on the legal instru­ ment of adoption in the second case. While the natural affiliation has an unlimited extend and its content is constantly the same, the civil affiliation may be ceased under the terms stipulated by law. 3.1.5.Alienation and mental debility (Article 19 and Article 9 Family Code) The mental alienation is a pathological state of a person whose psychical functions are affected in an extend total excluding the discernment. The mental debility is a state determined by the effect of the psychical functions, the person has an altered discernment which is insufficient to allow responsible decisions making. The temporarily absence of the spiritual faculties is a natural incapacity which hinders the will expression due to the action of external inhibitions and the affected person is able to express will but not in a responsible manner 32. The existence of mental alienation or debility is a fact leading to the marriage annulment even if they have not been ascertained by the special proceedings of inter­ diction.With other words, the nullity intervenes without taking into consideration whether or not these persons are put under judicial interdiction or have entered into the marriage under lucidity moments. It is important to ascertain, eventually by a psychiatric valuation, if the person belongs to the category stipulated at Article 9 Family Code 33. In the case stipulated at Article 9, mental alienation and debility are maladies leading to the nullity of marriage irrespective of the acknowledgement or non acknowledgement of these diseases to the spouses, and the provision of law have an imperative character in this respect. Pursuant to Article 9 and Article 19 Family Code the marriage of the person lacking temporarily spiritual faculties is under absolute nullity if it has been concluded while these persons had no discernment due to transitory mental confusion, inebriety, hypnosis, suggestion or other similar states. As in this case the goal of marriage may be reached and as the nullity sanction does not refer to a social

31 Even the adoption regulated by the Civil Code of 1865 had limited effects, i.e.: was establishing patrimonial relationship similar to those from a natural affiliation and some personal relationship but the family relationship of the adopted person towards his/her natural relatives were also kept. 32 G.Lupşan, Dreptul familiei, Ed.Junimea, Iaşi, 2001, p.92­93

33 Trib.Supr., Dec.civ.nr.1517 din 17 septembrie 1767, în C.D. 1968, pag.157; Trib.Supr: Dec.civ. nr.816 din 30 aprilie 1985, în R.R.D. nr.1/1986 p. 60 11 interest but to a personal one, i.e. the protection of the person lacking temporarily spiritual faculties, it is advisable the temporarily lack of discernment to be sanctioned with relative nullity of marriage in a future enactment. 3.1.6.Total lack of consent to marriage The consent is that essential root and general condition of an instrument consisting in a declaration of intent of a judicial subject to enter into a specific instrument and to assume all judicial obligations 34. The absolute nullity comes in force when lacks the consent of both spouses and this consent has not been expressed under the observance of all formal condition needed for entering into the marriage. 3.1.7. Lack of publication of the intent to marry This absolute nullity clause of marriage has been introduced by Law no.23/ 1999. In fact the introduction of this law text means a fulfilling of the obligations taken by Romania regarding the ratification of UN Convention regarding the consent to marriage, minimal age for marriage and marriage record. Pursuant to Article 1, paragraph 1 of the Convention, a marriage cannot be entered into without the free and full consent of both parties which has to be personally expressed by the parties in the presence of the authorities competent for celebration the marriage and the witnesses following to a sufficient publication according to the legal provisions 35. This return to the tradition of the Civil Code of 1964 is of great benefit on the first hand, but, on the other hand, we can note that the obligation to advertise an excerpt of the marriage declaration of future spouses recurs to the registrar and not to the future spouses.These do have no control on the clerk nor are they entitled to impose the observance of legal obligations.The law giver has not foreseen if the future spouses have a legal mean by which they can prevent a sanction against them for a non­imputable reason, the right to inform the court being expressly foreseen only for the refuse of the registrar to celebrate the marriage. 3.1.8.Non­observance of the formal requirements regarding publicity and the solemn character of marriage (Article 19 and 16 Family Code) Pursuant to Article 16 Family Code the marriage must be entered into before the registrar, at the headquarters of the registry office in the presence of both spouses which must personally and publicly express their consent. For sound reasons is admitted the celebration of marriage outside the headquarters of the registry office 36, but this does not imply the renouncement to its solemn and public character.The marriage clandestinely entered into leads to absolute nullity even if its solemn character has been observed. All this attributes of conclusion of marriage are independent and must not be cumulatively fulfilled. 3.1.9.The incompetence of the registrar The marriage stands under absolute nullity if it has been concluded by a clerk which was not dully authorized as a registrar. Pursuant to Article 7 of Law no.119/1996 regarding the registry office documents, the record in the registry done by an incompetent person, but publicly performing the mandate of registrar, is valid. According to the approach of the law

34 E.Lupan, I.Sabău­Pop, Tratat de drept civil român.Partea generală, vol.I, Ed. C.H.Beck, Bucureşti, 2006, p.193

35 T.Bodoaşcă, op.cit., p.231

36 I. Albu, see above. For a contrary opinion, i.e. territorial incompetence leads to the absolute nullity of the marriage see T.R.Popescu, Căsătoria în dreptul…., Editura Academiei, Bucureşti, 1964, p.85 12 giver, the lack of this capacity does not hinder the validity of the marriage if there is a general belief that the person before which the marriage was celebrated was authorized to celebrate it. 3.1.10.Sham marriage In contradistinction to the cases in which the marriage may be annulled in accordance with the circumstances leading to the vitiated consent, the marriage stands under absolute nullity if at its conclusion the spouses intended the fraudulent avoidance of an imperative provision of law, i.e. the fulfilment of another goal than that of generating natural conjugal relationship. As a matter of fact, the definition of a shame marriage is accepted as being a “marriage entered into with other goal than that of establishing a family" 37, i.e.: avoidance of criminal law liability of the person who committed a rape who marries his victim 38, to receive the right of residence (before the year 1990) in a locality classified according to law as “big city” 39, fulfilling of law requirements in order to get the facilities granted by law to young married people 40, fulfilling of requests demanded by the canon laws in order to get a special position within the clergy 41 or any other interest than the establishment of a family 42. The Romanian doctrine has not reached a single point of view regarding the issue of sham marriage in its simulation version. Under the point of view of the hidden goals of entering into a marriage, the sham marriage is analyzed as an infringement of law 43. 3.1.11.The marriage entered into by persons having the same gender Still from ancient time under natural, moral, religious and judicial point of view the marriage was considered as a union between man and female. This cause of absolute nullity of the marriage not expressly foreseen by law is commonly accepted by the Romanian literature and jurisprudence 44. It is sanctioned both the marriage entered into by persons having the same gender and the marriage of the person whose gender is not clearly defined (hermaphrodite), or of the persons suffering from a genital malformation that makes impossible the gender differentiation and conjugal rites. 3.2.Absolute marriage annulment proceedings 3.2.1.Competent court From material point of view the court having competence to judge an action for absolute annulment of marriage is the first instance court and pursuant to Article 1

37 E.Florian, op.cit., pag.44, A.Bacaci, C.Hageanu, V.Dumitrache, op.cit.,p.112

38 Trib.Supr., Secţ.civ., Dec.civ.nr.843/1971, în CD 1971, pag.176, idem Dec.civ.1657/1968, în CD 1968, p.159

39 Trib.Supr., Secţ.civ., Dec.civ.nr.396 şi 798/1985 citate de E.Florian, op.cit., p.45

40 Trib.Satu­Mare, Secţ.civ., Dec.civ.nr.310/1994 (nepublicată) citată de E.Florian, op.cit., p.45

41 Trib.Satu­Mare, Secţ.civ., Dec.civ.nr.38/1994 (nepublicată) citată de E.Florian, op.cit., p.45

42 The French doctrine cites some examples of sham marriage: the marriage between the physician and his/her patient in order to avoid the incapacity to receive the rights foreseen at Article 909 French Civil Code; The marriage entered into in order to receive the citizenship; the marriage entered into in order to legitimate a child; the marriage entered into in order to avoid military service by husband.

43 Trib. Supr., Secţ.civ. Dec.civ.nr.2696/1987, în R.R.D.nr.7/1988, p.57

44 I.P.Filipescu, op.cit., p.18, I.Albu, op.cit., pag.59, Al.Bacaci, V.C.Dumitrache şi C.Hageanu, op.cit., p.25 13 Civil Procedure Code, from territorial point of view, the court having jurisdiction over the residence of the respondent is deemed as having competence. The rules regarding the territorial competence of the court in the actions for annulment of marriage have an ordering character and their infringement lead to the relative incompetence of the court. Therefore, the court is not entitled to decline ex officio its competence but only on the request of the respondent 45 . 3.2.2.The parties The action for absolute annulment of the marriage may be brought during the lifetime of the spouses by any person proving a lawful interest (e.g.: the wife in the first marriage of the bigamous husband, the spouses’ creditors, the prosecutor, and the relatives of the parties 46). Because by this action are also protected public interests, it is deemed that the person bringing such a claim must not prove a personal interest for the action to be admitted 47. 3.2.3.Extinctive prescription period The claim for absolute nullity of marriage may not be prescript, i.e. it may be entered at any time. This rule is foreseen as a general title by Article 2 of Decree no. 167/1958 48 , according to which the nullity of a deed may be claimed at any time, as an action or as an exception. 3.2.4.Evidentiary proceeding and means of proof The petitioner who must bring proofs shall prove by all legal proof means (deeds, interrogation, testimony, forensic assessment, presumptions) that at the moment of entering the marriage a formal or root condition has been breached or that there was a diriment obstacle. 3.2.5.Judgment The absolute nullity of the marriage must be ascertained and not decreed. If, as a principle, the judgment has only effect on the parties involved in the action, in the matter of marriage nullity, the judgment produces erga omnes effects. At the same time, the judgment ascertaining the nullity of marriage making reference to the marital status of a natural person establishes rights and according to Article 44, Letter c of Law no. 119/1996 its provisions have to be recorded in the registry kept at the registrar office.

3.3. The effects of ascertaining or declaration the marriage nullity Irrespective of the type of marriage, absolute or relative, the effect of the judgment is the same, i.e. the ex nunc and ex tunc abolishment of the marriage being considered that it was never entered into. The effects of marriage nullity regarding the relationship between spouses As far as the non­property law relationship between spouses concerns, the abolition of the marriage produces the following effects:

45 C.S.J.,Secţ.civ., Dec.civ.nr.2456/1995, in Jurisprudence Bulletin 1995, p.73

46 Trib.Supr., Secţ.civ., Dec.civ.nr.1805/1972, în CD 1972, p.193

47 T.Bodoaşcă, op.cit., pag.243

48 Decree no.167 of 10 April 1958, republished ­ regarding the extinctive prescription­ published in the Official Bulletin no.11 of 15 July 1960. The republished text of the Decree no.167 of 21 April 1958, contains the initial text of the decree with the amendments brought by Decree no. .218 of 1 July 1960, and has a new numbering of its articles. 14 ­ if the names of the spouses changed following to the marriage, they will restore their names prior to marriage. The spouse taking the name of the other spouse is not entitled to keep it in the future, not even for sound reasons, as it is possible in the case of divorce. ­ all specific rights and obligations of the spouses are ceased, each spouse is allowed to marry other person or even the other spouse if the nullity reason disappeared 49. ­ if the abolition of the marriage takes place before the wife reached the aged of 18 years she recovers her capacity of person with reduced action capacity and is not entitled to benefit as in the case of dissolution of marriage by divorce of the provision of Article 8, paragraph 3 of Decree no. 31/1954. ­ an eventual loaded criminal law case for bigamy or adultery may not be continued as the parties lose their process capacity as it is deemed that they never entered into the marriage and never were man and wife. ­ between the spouses is deemed that there was no adjournment of prescription because they never had this capacity. As far as the property law relationship between spouses concerns, the abolition of the marriage produces the following effects: ­ the communal estate regime could not be established and that is why eventual estates acquired by the spouses within the span from entering the marriage and ascertaining the marriage nullity are under the provision of common law being considered that they have been acquired in co­ownership and not in joint ownership. ­ there could not exist a maintenance obligation between spouses ­ the inheritance right of the surviving souse may not be claimed if one of the spouses died before the marriage abolition judgment became final and irrevocable, as the retroactive character of the sanction is main part of the nullity. The law expressly foresees two exceptions from the retroactive character of marriage nullity: the first one regarding the children born in an abolished marriage which keep their capacity of children born in a valid marriage (Article 24, paragraph 2 Family Code) and the second one regarding the protection by the instrument of putative marriage of the spouse in good faith at the moment of conclusion of the marriage (Article 23, paragraph 1 Family Code). The effects of marriage nullity regarding the relationship between parents and children Pursuant to Article 23, paragraph 2 Family Code “the abolition of marriage has no consequences on the children who keep their capacity of children born in the marriage”. But they, even if they should have been deemed as born out of wedlock, they should have the same legal status as the legitimate children (Article 63 Family Code) towards their parents and relatives, and that is why Article 23, paragraph 2 Family Code must be interpreted as referring to the way of ascertaining lineage. An other interest is related to Article 53, paragraph 2 Family Code, according to which “the child born after the dissolution of marriage, ascertaining the nullity of marriage or annulment of marriage has as father the former husband of his/her mother

49 Al.Bacaci, op.cit.p.110 15 if it was conceived during the marriage and the birth took place before the mother entered into another marriage”. The personal and patrimonial relationship between the parents and children are regulated, by similitude, by the provisions valid in the matter of divorce (Article 24, paragraph 2 Family Code). The other effects of the lineage out of wedlock must be determined if no special provisions exist. There are such provisions regarding the family name of the child born out of wedlock – Article 74 of Family Code pursuant to rights equity principle of the child born out of wedlock with the legitimate child (Article 73 Family Code).

Chapter 4. Putative marriage 50

The putative marriage is regulated by the provision of Article 23 and 24 Family Code and means the void or annulled marriage whose effects are kept by the law to the benefit of the spouse or spouses in good faith. The regulations regarding the putative marriage are justified by defending the principle of good faith according to which the innocent spouse or spouses at the moment of entering into the marriage enjoy all effects produced by the abolished marriage. The Romanian law establishes the concept of putative marriage by the provision of Article 23, paragraph 1 Family Code according to which “ the spouse being in good faith at the moment of entering into the marriage being declared void or annulled keeps his/her status as spouse of a valid marriage up to the date the judgment becomes final. Accordingly, the putative marriage seems to be that void or annulled marriage whose effects are kept by the law to the benefit of the spouse or spouses in good faith up to the date of its abolition 51. In order to be considered a putative marriage, the marriage must comply with the following criteria: good faith and the judicial appearance of the marriage must be present.

Chapter 3. Regulation of marriage nullity in different international law systems

5.1. German law Germany counts among those countries in which the marriage has an exclusi­ vely civil character. Defined as being the union between man and female based on the freely given consent and concluded under observance of the formal requirements set forth by law, the marriage is entered into only before the representative of the public authority.

50 Etiologically the term putativty comes from the Latin puto, ­are, which means „to believe, to imagine”

51 I.Albu, op.cit.p.243; D.Gherasim, Buna credinţă în raporturile juridice civile, Ed.Academiei, Bucureşti 1981, p.195 16 The non­observance of the law requirements for entering into marriage produces different judicial effects. Some of them may have as consequence the not conclusion of the marriage, the inexistence of the marriage, and other may determine, as the case may be, a void marriage or an annulled marriage. From the point of view of observance of the validity requirements for entering into the marriage in the German law are differentiated: lawful marriages, inexistent marriages, void marriages and annulled marriages. As far as the void marriage concerns, this is considered to be firstly a lawful marriage, but that can be later abolished, a marriage giving the appearance of lawfulness, suffice for entering the marriage into the civil circuit making it capable to produce specific judicial effects. In the German Law, the marriage is void only in the cases expressly foreseen by law: when there is a severe formal deficiency in conclusion of marriage (17 EheG), in the cases of lack of decision making capacity (18 EheG) or in the cases of inobservance of total interdictions (20, 21 EheG), i.e. affiliation and bigamy. According to the German law, there is an annulled marriage if at the moment of entering into marriage the spouses did not received the consent of the legal representative when such a consent was needed, when the consent of a spouse has been vitiated by error, dolus or violence, when the spouse married based on the decease declaration of other spouse which later proved to be false.

5.2. French law In France, as well as in other European countries, the marriage has an exclusi­ vely civil character too. The French Civil Code of 1804 does not define the marriage, so that it becomes the task of the doctrine to give a definition for this institution. Defined as being “the instrument by which a man and a woman, which chose each other, commit themselves to live together up to their death" 52, according to the French law the marriage has to be concluded under observance of some conditions imposed by law. The non­observance of law requirements for entering into marriage 53 has evil legal consequences for those in breach, and as the case may be, it can lead to a void marriage or to an annulled marriage. In the French law the nullities have an absolute and relative character and there are some differences as compared to common law. Due to the concern to keep the marriage effects the absolute nullity may be confirmed and in the same way is the retroactive effect of nullity removed in opposition to common law, in the case of putative marriage, but only for the spouse in good faith. In the nowadays valid French law, the following circumstances bring the absolute nullity of marriage: gender difference, marital age, bigamy, affiliation, total lack of consent, sham marriage, lack of publicity required by law i.e. clandestinity, incompetence of the registrar, infringement of French law, and the marriage abroad of a French citizen.

52 Jean Carbonnier, Droit Civil, La famille, les incapacites, Presse Universitaires de France, Paris, 1983, p 15­25

53 See French Civil Code, Title V­Marriage, Chapter I­ Qualities and conditions requires in order to enter into a marriage 17 The French Civil Code stipulates that a marriage “which has been concluded without having consent of both spouses or of one of them, may only be attacked by the spouses or by that one of them whose consent was not freely given” 54. As compared to the Romanian law, the French civil code does not mention anything about dolus as consent vice. This silent of the law is an intentional one as the French law giver has established the tradition of canonical law expressed by Loysel ”En mariage il trompe qui peut.” 55 In the French law, the following circumstances bring the relative nullity of marriage: violence, error regarding the civil identity 56, error regarding an important capacity. Putative marriage­ The putative marriage is a void and voidable marriage if one or both spouses are in good faith. In the Romanian law, for a void or voidable marriage to be considered as a putative marriage three conditions have to be fulfilled: ­ the good faith of one of spouses; ­ a sound error reason, with the explanation that only the de facto error is admitted ­ solemn celebration of marriage

5.3. Italian law Generally, the Italian law has very few different provisions from those of the Romanian law regarding the nullity of marriage. According to the Italian Civil Code the cases leading to the nullity of marriage are stipulated in Articles 84­89. These cases are: marital age, lack of full spiritual faculties, bigamy, affiliation, offence, temporary interdiction to enter into a new marriage. 5.4. Quebec law Canada has at the same time three features of state organization: federation, parliamentary democracy and constitutional monarchy. It applies two distinct law systems: the civil law and the common law. In nine out of the ten provinces of Canada the civil law is bases on the common law system in which the judicial precedents have the value of law source. When the judge is passing a judgment this becomes a precedent that may be applied to other judges which will have to give a solution for similar cases in the future. Numerous Canadian laws are in fact a reflection of the judicial precedents and of the proceedings established during time. In the Province of Quebec instead, the civil law is based on a written civil code which establishes the main general principles and basic rules that apply to different judicial institutions. As against the common law the judge from Quebec having to pass a civil judgment has to primarily refer to the civil code in order to find the answer and only after that he/she will refer to the judicial precedents, if applicable. The Province of Quebec adopted its first civil code in year 1866. This was in large extend inspired by the Napoleon Code and was using also other sources as the

54 Article 180 Civil Code, paragraph 1

55 In marriage betrays that one who can.

56 Article 180 paragraph 2 French Civil Code stipulates that „If there is a mistake related to o person or to a capacity of a person the other person is entitled to require the nullity of marriage ”. 18 Paris Common Law, some local customs and even the British common law system. On the 1 st of January 1996 in Quebec was adopted a totally new civil code as result of more than thirty years of work, which was intended be updated and actualized to the new facts of the society. According to the Civil Code of Quebec 57 the marriage has to be publicly celebrated before an authorized clerk and in the presence of two witnesses In the civil code of the Province of Quebec the nullity of marriage is relatively summary regulated in Chapter III of Volume II in a different way as compared to other legislations. Related to the nullity of marriage the law giver has foreseen only one article, Article 380, which stipulates: “the marriage being entered into without observance of this title and the needed condition for its establishment may be declared void upon request of any interested person beside the court which has to pass a judgment based on circumstances.” The cases leading to the nullity of marriage are: marital age, bigamy, affiliation, prior approvals, and putative marriage.

5.5. Canon law Among the fundamental and inalienable human rights is of course ius conubii. This is a personal right which translates in judicial terms the natural trend of man to marriage which may not be touched by a human law without affecting the human dignity. By this “right” the church has tried to be the oriflamme to provide and facilitate to each man the access to free marital life without any constraint from any authority meant to repress this freedom. Within the state framework, and having a distinct character towards the state, occurred a distinct entity, i.e. an association, a community or religious organization known by different names, the Church being the most well­known of them. The church has used the law in order to make out of it an ancillary of its saving mission and by combining the judicial with the religious and moral­religious standards it built an own law, the canon law or ecclesiastical law (jus ecclesisticum) whose individuality and utility for its mission have been, without any doubt, proved and confirmed. Therefore, the canon law is the rules by which the church authority sets forth how the members of the church must act or behave under particular circumstances in order their action to be positively rated as related to the religious believe and ethical standards. As well as the legal standards, the canonical standards apply on individuals in time and space. Through time they produce effects and apply only for acts committed during their validity time.As a principle the canonical standards come into force at the mo­ ment of their establishment and there is no deadline for the cessation of their action 58. In space the canonical standards apply only within the church and as far as the persons concerns they apply to all church members irrespective of their state.

57 Cited below C.c.Q­art.365

58 The canonical doctrine does not know the abrogation acts (dissolution and total putting out of force), derogation (temporary or partial dissolution), subrogation (adding of a new part to an existing law), obrogation (removal of a part and partial replacement with other laws), or prorogation (prolongation of the validity of a law only for a certain period of time). 19 In the next pages we will try to approach the subject of this dissertation under the point of view of canon law in the form regulated in the Romanian Orthodox Church and the Catholic Church. 5.5.1. The orthodox canon law The Holy Sacrament of wedding is the holy work by which is finalized by grace the agreement to marry of two. The religious blessing of the marriage, i.e. wedding is also called with a general sense religious celebration of marriage. According to the Orthodox Church the obstacles to wedding are divided into four categories: religious conditions, moral conditions, physical conditions and social conditions. The main religious conditions which must be fulfilled by the receivers of the Holy Sacrament of Marriage are: the orthodox believe or the right believe; valid baptism; the capacity of being a full rights member of the church 59; neither of the spouses is permitted to previously had a religious or civil registry marriage and if previously married they must obtain the civil and religious divorce; neither of the spouses are permitted to enter into a marriage more than three times; the persons must not be spiritual or religious affiliate in a degree not allowed by church in order to marry; both persons must have the same religion or confession (mixta religio) must not be heretic or schismatic (disparitas cultus); the male should not have taken the holy orders as priest or ipodeacon 60 and for the female there is also the interdiction in the old church to be part of a religious association of widows, presbyters, eremites, virgins, deaconess and not to have taken the holy orders as deaconess 61; none of the persons is allowed to previously have given the oath as monk or sister or for celibacy; to have orthodox godfathers and godmothers that had a wedding celebration before the church and have the same denomination; to have religious dispense if such a dispense may be obtained if such impediments exists. The main moral conditions which must be fulfilled by the receivers of the Holy Sacrament of Marriage are: to be aware, i.e. to have sound mind and be responsible; to be able to freely express their consent for the marriage; to be moral, i.e. not to have committed severe moral offence putting them in the moral incapacity to marry and making them morally unfit for entering into marriage ; the person to whom the priest candidates marry must be virgin 62 and, generally be in blameless moral condition 63, i.e. not to be widow, divorced, etc.; not to be affiliated in a degree not permitted by church for marriage; to have a dispense for impediments if such a dispense is possible. The main physical conditions which must be fulfilled by the receivers of the Holly Sacrament of Marriage are: not to have the same gender; to have the needed health, i.e. not to suffer from illnesses that might endanger the health of other spouse or descendants; to have the physical integrity required by the family life and marriage goal, i.e. to have normal genitals; to have the marital age, i.e. the age required by civil and church law to be permitted to enter into a marriage; to have the physical capacity,

59 The person in question must not have been excommunicated under anathema or under any other punishment which might hinder her/him to receive the Holy Sacrament of Wedding as for example the simple interdiction to receive the Holy Communion.

60 Canon 26, ap.6,VIec. 61 Canon 15, IV, ec. 62 Nov.Just. VI, 1,3,22,42 Big Code of Law, Glavele 58 and 61 63 Canon 17, 18; ap.44 VI, ec. 20 i.e. potency needed for fulfilment o marital duties, that means not to lack this capacity due to infirmities; to physically appear for celebration of marriage and taking the Holy Sacrament of Wedding; not to exist a physical affiliation or alliance in an extent not permitted by church for marriage; to have a dispense for impediments if such a dispense is possible. The main social conditions which must be fulfilled by the receivers of the Holy Sacrament of Marriage are: to be citizen of the state where marriage is celebrated and to be legally competent as far as the civil rights concerns, not to stand under interdiction; to have full social freedom, i.e. not to be in prison or in other situation restricting their ability to take the decision to marry and to be able to fulfil it without the consent of dependants; to have the approval of the superior authority or competent bodies if such an approval is needed for persons under special conditions; to perform the registry office marriage in advance and to lay down the proof; to have the needed dispense, if applicable. 5.5.2.Catholic canon law 64 As opposed to the law of Oriental Churches, in the Latin canon law the spouses are fulfilling the act of marriage and not the priest or deacon who by this is merely assistant. The catholic canon law of marriage refers only to those who received the baptism from the Catholic Church 65 and not to those who abandoned this church by a formal act 66. 1. The consent The first paragraph of the canon referring to consent was not changed as compared to the previous code: “the marriage is established based on the consent of the parties lawfully expressed among persons having legal competence; in this consent cannot intrude any human power" 67In Canon no.1057 we can read: “the con­ sent to marriage is the intended action by which a man and a woman give and receive themselves to each other by an irrevocable union for establishing the marriage.”By this is specified that the body is not reduced to the corporal entity as the concept includes the person by itself i.e. the soul. According to the canon standards: "the following person do not have the capacity to marry: 1) those lacking full spiritual faculties; 2) suffering from a severe form of discernment deficiency regarding the rights and reciprocal duties needed for the marriage; 3) because of psychical causes are not able the undertake the essential obligations of the marriage.” 2. Errors in assessment of the person and of her/his qualities If the defective assessment of the person as natural person obviously invalidates the marriage 68, in spite of the fact that such type of error is not very close related to the reality, the concept of error has evaluated both in canon and civil law. 3. Fraud The concern for not infringement the law of indissolubility has always determined the Catholic Church to exclude the frauds form the causes of marriage nullity. In spite of this, just like the French civil code, the canon law took into consideration, in practice, the fraudulent character of error. 4. Doctrinal error

64 Dreptul canonic, Ediţia a 2­a, Editura Dalloz, 1999 65 Canon no. 1059 66 Canon no. 1086 67 Canon no. 1057 68 Canon no. 1097 21 This name is given to the error which may affect both an essential propriety of the marriage (unity and indissolubility) and his dignity as a sacrament. Such an error does not alter the marriage consent “as long as it does not have an influence on will” 69, with other words when it is kept in the conceptual field. 5. Simulation The horse sense assumes that the consent is “in accordance to the words and signs used in marriage celebration” too 70. Such a presumption cannot resist before a contrary proof because it is possible to simulate the consent either by rejecting the marriage itself in spite of appearances or by exclusion form consent of one of its fun­ damental proprieties or elements 71. This last type of omissions are named partial simulation in order to distinguish them from total simulations, but this individuali­ zation is a faulty one as both have the same result: marriage nullity. 6. Total simulation “That one who plays off wants to play off”.The simulation of the marital consent may not be imagined without a positive act of will that is not similar to an alleged act. Therefore it is important not to take a strained consent for a simulated consent. 7. The refuse As against the total simulation, the refuse involves the intention to enter into marriage but this intention becomes inefficient because it is accompanied by a clear intention to banish an inherent element of the marriage union: either one of the “essential proprieties” (unity and indissolubility), or one of the "essential elements" i.e.the mutual support of the spouses and the conception and education of children. In this case is needed a will act too (it is desired a "different", dissoluble marriage with­ out children, etc.) and such an act consists of a “concept” in opposition to marriage. The refuse of unity, indissolubility and conception can properly be more often found than the refuse of the mutual support of the spouses, not providing of such a support is rather the result of incapacity than of refuse, at least generally speaking. 8. The conditioning While the Code of 1917 took into consideration three forms of conditioning the future, the nowadays code has not kept this distinctions and the Canon no. 1102 simply states: “the marriage occurring as a consequence of a conditioning of the future may not be validated”. The second paragraph of the canon takes into consideration the possibility of a marriage concluded under a condition related to past ("I only marry you when you did not have a previous relationship”) or the present (“I only marry you if you are virgin”): the marriage is valid or not “if the condition object exist or not”. 9. Violence and fear In Canon no.1087 of the Code of 1917 we can read: “The marriage entered into as a consequence of severe violence coming unduly from outside from which a person is able to escape only by choosing the marriage” is not valid and "any other fear even if it is a source of the contract does not lead to the nullity of marriage”. This second paragraph has not been retaken by the Code of 1983 and that means recognition, in some extent, as in fact it is done by the jurisprudence, of the

69 Canon no. 1099 70 Canon no. 1101, paragraph 1 71 Canon no. 1101, paragraph 2 22 option a previous lack of interior freedom to exist which may lead to the nullity of marriage. Obstacles to marriage in canon law “Are allowed to marry all those not standing under a law interdiction”.The right to marriage has been always recognized by the Church and it is suffice to quote from the encyclical Pacem in terries of 11 April 1963 of Pope John the 23 rd: “Anyone is entitled to the freedom to choose his way of life. Consequently anyone has the right to establish a home ….. or to follow the sacerdotal and religious way” (1,15). The Code of 1983 does not contain anymore the interdictions named prohibiting in the old law which makes the marriage unlawful. In spite of this, the interdiction of a mixed marriage "without having the permission of the competent authority" 72 seams to be a disguised obstacle. Only the supreme authority of the Church is recognized as having the power “to really declare the moment when the divine law hinders or makes void a marriage” and also “to set forth other interdictions for the baptized people”.7 3 The code contains twelve invalidation interdictions. The interdiction referring to spiritual affiliation existing between the person solemnizing the baptism (not necessarily the priest) and godfather and, on the other hand, the baptized person has not been kept (Canon no. 768 of the Code of 1917). In return, the affiliation relationship created by adoption is neither from now on an invalidation interdiction, while the Code of 1917 had the same opinion as the civil law by considering a marriage as void if it has been decreed by law. 1. Age (Canon no. 1083) “The man is not allowed to marry before reaching the age of sixteen years and the woman the age of fourteen years". 74 The required age for a valid marriage is not determined only by the capacity of fulfilling the sexual intercourse. The maturity of judgment needed for giving a true consent plays an important role especially because the age stipulated in the Code, applying to all countries, may be considered a little bit to low in some of these countries (The French civil code is more severe Article 144). 2. Impotence (Canon no. 1084) As against the secular law, the canon law designated the impotence, of male and female, as an obstacle leading to the annulment of marriage “ by its nature” and that indicates that no dispense may be granted. It is meant the incapacity to fulfil the sexual intercourse (impotentia coeundi) and not infertility (impotentia generandi). The latter one does not mean an obstacle but according to the Canon no. 1098 it might be interpreted as fraud. The incapacity to fulfil the sexual intercourse must be prior to marriage and, above all, it must be incurable. By this the jurisprudence means: incurable if not exceptional or unlawful means are used which may endanger the life of persons. No matter if the impotence is absolute (towards any persons) or relative (towards certain person). 3. Bond (Canon no. 1085)

72 Canon no. 1124 73 Canon no. 1075 74 Canon no. 1083 23 If a person is bonded by a prior marriage, even unconsumed, he/she is not allowed to marry if the former spouse is still alive. The Christian marriage has a monogamous character and one of its top priorities is even the unity. As a conclusion “a concluded and consumed marriage cannot be dissolved by any human instance for any reason, but only by death." 75 4. Denomination differences (Canon no. 1086) The marriage entered into by two persons, out of which one has been baptized by the Catholic Church or entered into this Church and has never left it by a formal instrument and any other not baptized person is not valid. “Do not be bound together with unbelievers” wrote St. Paul in the Second Epistle to the Corinthians (6,14), but in his first epistle he preaches the separation of an “improper” bond only for the cases in which a Christian was living together with a non­Christian. In the case of marriage of spouses belonging to different denominations they need a dispense for denomination differences which may be easily granted. After receiving the baptism they must not renew their consent and their marriage becomes a sacrament. 5. Holy order (Canon no. 1087) Before the 4 th century, both in western and eastern world, no canon law, general or particular, was interdicting the ordination of married men or their obliga­ tion to separate form their wives and to be abstinent. This is the practice kept by the eastern Churches inclusive the Catholic Church in this area, with the only exception of marriage after ordination (monks do not marry). As far as the Latin Church concerns, two different distinctions occurred in the 4 th century. The first one does not allow a priest to marry after his ordination and the second one does not allow to a married man to have sexual intercourse to his woman after his ordination (he is allowed to continue to live with her). In spite of being often mentioned, the canon standards regarding abstinence have been frequently breached, up to the moment the Gregorian reform (of Pope Gregory the 7 th in the 12 th century) brought more efficiency by being more rigorous controlled. At the end, in the second synod of Latran, in year 1139, the interdiction for clergy, starting with sub­deacon has been recognized as having an annulling character from canonical point of view: “We do consider, declares the synod, that such a bond (entered into by a person belonging to clergy) is not a real marriage.” 76 The abolition by Pope Paul the 6 th of the sub­deacon order has not changed the principle of mandatory celibate for the clergy of the Latin Church 77 and the breach of law makes one passible of latte sententiae 78 punishment. 6. Perpetual chastity oath in a religious institution (Canon no. 1088) This interdiction according to which the “persons bounded by a perpetual chastity oath in a religious institution” cannot enjoy a valid marriage is linked to the previous interdiction. The interdiction to marry, which apply to the immaculate persons, monks (not necessarily priests) has been applied by various punishments over the centuries but not by making void the bound. As well as for the ordinate persons, the second synod

75 Canon 1141 76 Canon no. 7 77 Canon no. 1087 78 Canon no. 1394 24 of Latran of 1139 declares void the marriage entered by “ordinary clergy and monks”. The Canon no. 1088 valid nowadays has a strict interpretation. It refers to persons, men and women, which publicly make an oath, i.e. " received in the name of the Church and by an authorized superior” 79, a perpetual chastity oath in a religious institution defined by the Code as “a society in which the members may make public perpetual or temporary oaths by own law which may be renewed when they expire and have a common life in brotherhood”.8 0 7. Abduction (Canon no. 1089) The interdiction regarding abduction appears between the man and the woman he abducted or retains in order to marry her. The goal of this canon is to protect the woman freedom. For this interdiction to be accomplished there are needed three conditions: a) a man to kidnap a woman (not vice versa) or to seize her (at his place or somewhere else), b) against her will; c) the sequestration to be done with the goal of marriage and not for another goal. The interdiction does not apply when the woman “at the moment of separation from abductor and being free” chooses " suddenly to marry” and that is also why dispense is not applicable. 8. Crime (Canon no. 1090) The secular law has named this interdiction as complicity to adultery. Abolished in 1904 he was part of French civil code for about hundred years. At Jewish people the adulterine woman and her accomplice were punished with death. 81 “At Rome, Augustus declared that a woman sentenced for adultery is not permitted to marry.” 82 As far as the adultery of the husband concerns, often hard to be proved, this was ignored by law. At the apparition of Novela 134 (Chapter 12) from year 556, occur measures against the adulterine husband who marries his accomplice.” In the canon law of the Catholic Church the case of relationship based on the promise of marriage is deemed as a crime and that was also the law contained in the Code of 1917. It was easy to receive dispense for such a "crime" and perhaps that is why the actual Code has not kept this “crime”. At the time being the interdiction aims only the conjugal crime itself, and does not allow, on one hand, the marriage of those who murdered the husband or the wife of a person he/she wants to marry, and on the other hand, “of those who killed their spouse by a physical or moral action".8 3 In this case is not necessarily needed the intention of marriage to exist at the moment of crime. 9. Consanguinity (Canon no. 1091) The consanguinity or blood affiliation makes void a “marriage between all ascendants and descendants both lawful and natural", i.e. direct line. By collaterally line the marriage is not permitted “up to the 4th degree of affiliation inclusive”, with other words between cousins, and between the children and brothers of grandparents and vice versa. The Code of 1983 has not kept the registration way and has adopted instead the civil (and Roman) registration way. It has reduced the range of interdiction which in the previous code applied also to cousins. Furthermore, it has removed the renewal of

79 Canon 1192 80 Canon 607 81 Lev 20, 10; Deu. 22,22 82 D 48, 5, 12, 13 83 Canon no. 1090 25 the interdiction and consequently the obligation to apply for more dispenses granted by the local Ordinary. 10. Affinity (Canon no. 1092) The affinity or the relationship by marriage which bonds the husband to all wife’s relative and vice versa, interdicts the marriage at any degree or in direct line. Up to the Code of 1917 the affinity was originated not only in a valid marriage but also in unlawful sexual intercourse (affinitas ex copula illicita). The code of 1917 has reduced the interdiction to affinity in indirect line “up to the 2 nd degree included" according to canonical specification that at the time being does not anymore exist. The interdiction for collaterally line comes no more in discussion. 11. Public honour (Canon no. 1093) The public honour is a half­affinity. It “occurs by a void marriage after a common life has been established or from a manifest or public concubinage”. The interdiction “does not allow the 1 st degree marriage in direct line between the man and the natural relatives of wife and vice versa.” The old law has taken into consideration the interdiction for public honour having as source the engagement, this interdiction being abolished by the Code of 1917, which preserves only those of an invalid marriage (a strict civil marriage of the spouses ruled by a canonical form) or of a public or manifest concubinage (the interdiction does not apply if the concubinage has not a public character). The code valid nowadays retakes the previous code and reduces its area. 12. Affiliation by lawful adoption (Canon no. 1094) “All those bounded by affiliation as consequence of adoption, in direct line or of 2 nd degree in indirect line are not allowed to marry each other” (Canon 1094). The canon law has late taken into consideration the affiliation by adoption. The Roman law interdicts the marriage between the parents and the adoptive children and between the adoptive brother and sister. It seams that these stipulations got lost during the Middle Age when even the adoption disappeared. The interdiction occurs in the Gratian's Decree (13th century) but the old theologians have no attached to much space in commenting it and sometimes they hesitated on its judicial dimension. The Code from 1917 overlaps the civil law: according to the Church the marriage is void when this was precisely mentioned by law. Since then, the interdiction has still an invalidation character according to the provision of Canon no.1094. We have to point out that this applies to the legal affili­ ation occurred by adoption. In the case of de facto adoption there is no interdiction. Dispense from interdiction is granted by the local Ordinary who must take into consideration the provision of the French Civil Code (Article 366).

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Monographs, articles and studies F.Baias, Simulaţia.Studiu de doctrină şi jurisprudenţă, Ed.Rosetti, Bucureşti, 2003 I.Leş, Consideraţii asupra inadmisibilităţii teoriei „actelor inexistente” în Dreptul procesual civil, în RRD nr.7/1985 S.Zilberstein, V.M.Ciobanu, Regimul juridic al nulităţii..., în S.C.J. nr.1/1986 I.P.Filipescu, Gh.Beleiu, Unele probleme privind nulităţile căsătoriei ridicate în practica judiciară, în R.R.D. nr.9/1971 I.Albu, Nulitatea căsătoriei în practica judiciară, în S.U.B.B., 1974 I.Mihuţă, Încălcarea unor norme imperative.Nulitatea.Efecte, în R.R.D.nr.12/1976 I.Rucăreanu, Principiul social al libertăţii încheierii căsătoriei în dreptul R.P.R în S.C.J.1964 C.M. Crăciunescu Aplicaţii ale teoriei aparenţei în drept, în Juridica nr.6/2000 Declaraţia Universală a Drepturilor Omului ­ adoptată de Adunarea Generală a Organizaţiei Naţiunilor Unite la 10 de septembrie 1948 D.Anitas, Notă în R.R.D. nr.2/1983 C.L.Popescu, Instituţia martorilor la încheierea căsătoriei, în Dreptul nr.11/ 1996 Dicţionarul explicativ al limbii române, Ed.Didactică şi Pedagogică, Bucureşti, 1975 Cf.J.Vernay, Le mariage civil en droit canonique, in Mariage civil et mariage canonique, Paris, Tequi, 1985 J.Gaudement, Le mariage en Occident, Cerf, 1987

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