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Marriage Nullity ~ „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.
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