THE CONCEPT OF MATRIMONIAL CONVENTION UNDER THE PROVISIONS OF THE NEW ROMANIAN CIVIL CODE (English version)

By Law no. 287 of July 17, 2009 on the Civil Code republished through Law no. 71/2011, the new Civil Code is subject to the tendency of the modern legislations to create a triple economic balance in relations between spouses matters by means of the matrimonial regimes established: 1. between spouses: the emergence of marital agreements, which led to the adoption of more flexible legal rules, that allow spouses a certain freedom to choose the regime of patrimonial relations between them; 2. within the family: to protect the interests of the family, they resorted to mandatory rules that provided for limitations and prohibitions (Art. 321-322 on family home - new concept in the Romanian law, art. 316 regarding the acts seriously threatening family interests); 3. between family and society-third parties: through the establishment of certain substantive requirements of legal acts, including of the marital agreements concluded by affidavit, with the obligation to be made public. We believe that in the new Civil Code, Chapter VI of Book II - The family is called Patrimonial rights and obligations of spouses devotes Section 1 Common provisions, paragraphs 1-3, art. 312-328 to the primary regime. The primary regime governed by art. 312-328 of the new Civil Code is defined as all legal norms governing the relations established between spouses, or between one or both spouses on the one hand, and third parties, on the other hand, relations having as object existing assets at the time of marriage, acquired during it, as well as contracted obligations in connection with such goods or the carrying out of the obligations of marriage that apply to all marriages, regardless of the matrimonial regime to which the spouses are subjected. The provisions of art. 312 of the Civil Code establish: a legal system that is the community property regime and two conventional regimes: separation of property regime and the regime of conventional community (the latter includes conventional exemptions from the community property regime). The legal matrimonial regime includes property acquired by both spouses during marriage, except for the goods provided by law, which are each spouse's own assets. The legal community regime will apply in all situations in which prospective spouses do not opt for the separation of property regime or for the conventional community regime. Separation of property regime is characterized in that each of the spouses is the exclusive owner of their property and of that they acquire by themselves after the marriage, at the adoption of this regime spouses are required to draw up an inventory of movable property belonging to each one at the date of the contracting of marriage. The Conventional community regime is applicable when by matrimonial agreement, they derogate from the provisions on the legal community regime, and the matrimonial convention concluded in this case may narrow or widen the community of goods. The new Civil Code places at the basis of patrimonial relations between spouses the principle of autonomy of will, predicting a real legislative reform of the matrimonial regime existing at present in Romania. The specialty literature defines it in a different manner. Thus, the matrimonial convention is defined as being “the convention by means of which the prospective spouses regulate their matrimonial system, the state of their current and future goods, in terms of the pecuniary relations that emerge from marriage2” or that this is a “conditional contract, solemn and irrevocable, by means of which the future spouses organize their civil condition and determine, as far as their goods are concerned, the consequences of the conjugal association 3”, or as „the legal act by means of which the parties regulate the main patrimonial relationships that will take place between them during marriage”.4 Another point of view5 that we strongly agree with, is that the matrimonial convention designates the conventional act through which the future spouses, making use of the freedom conferred by the law-maker, set their own matrimonial system or change, during marriage, the matrimonial system under which they were married.