 THE LAW APPLICABLE TO THE CONCLUSION OF THE MATRIMONIAL AGREEMENTNadia-Cerasela Anitei ()
Jurnalul de Studii Juridice, 2013, vol. 3-4, 13-19 Abstract: For the clarification of the meaning of the notion of matrimonial agreement in private international law we need to perform the primary classification of the concept of matrimonial agreement in Romanian law. To clarify the meaning of the conflict of laws of Article 2590 of the new Romanian Civil Code in conjunction with 2593 of the new Romanian Civil Code we need to perform the primary classification of the concept of matrimonial agreement. According to art.2558 of the new Civil Code, the primary classification is always performed according to the Romanian law, namely in accordance with the Romanian legal system. In the doctrine, the matrimonial agreement designates the conventional act by which future spouses, making use of the freedom conferred by the legislature, establish their own matrimonial regime or change their matrimonial regime under which they were married during marriage. According to art.2591 of the new Civil Code "The convention of choice of the law applicable to the matrimonial regime may be concluded either before the celebration of marriage, or at the time of marriage, or during marriage (paragraph 1). The form conditions of the agreement of choice of the law applicable are those provided either by the law chosen to govern the matrimonial regime or by the law of the place where choice agreement is concluded. In all cases, the choice of the applicable law must be express and established by a document signed and dated by spouses or stipulated beyond reasonable doubt in the clauses of a matrimonial agreement. When the Romanian law is applicable, they must satisfy the requirements of form set by it for the validity of the matrimonial agreement (paragraph 2) Spouses may always choose another law applicable to the matrimonial regime, under the conditions specified in paragraph (2). The new law takes effect only for the future, if spouses have not decided otherwise, and cannot harm, in any case, the rights of third parties. (Paragraph 3). Regarding the form conditions of art.2594 the new Civil Code stipulates: "The form conditions required for concluding the matrimonial agreement are those stipulated by the law applicable to the matrimonial regime or those stipulated by the law of the place where it is concluded." In terms of private international law, the concept of marriage agreement will have a scope that will include the Romanian types of matrimonial agreement concluded on the basis of the matrimonial regime chosen according to the provisions of the new Civil Code and the types of agreement acknowledged by the foreign law. Once the operation of primary classification is concluded, by including the legal relationship of private international law within the conflict of laws of art.2590 of the new Romanian Civil Code and by determining the law applicable under the provisions of that article, the concept of matrimonial agreement will acquire a new content and a new scope, as a result of the operation of secondary classification, which is done by lex causae, ie, by using the material law applicable to the legal relationship in question. The classification solution based on lex causae is supported by the majority of private international law doctrine (I., P., Filipescu, (1999) :109; O., Ungureanu, C. Jugastru, A. Circa, (2008) :86-131; M., V., Jakota, (1997) :223; Y., Loussouarn, P., Bourel, (1996) :201-203; B., Audit, (1997) :203-204) In conclusion, we note that the definitions: of the matrimonial regime and of the matrimonial agreement, are a valuable auxiliary means in the primary classification of legal relations between spouses, or between spouses and others, born abroad, but unknown to the Romanian legal system. Through these concepts, the Romanian authorities will try to place these relations within the scope of the notions of patrimonial relations between spouses and matrimonial agreement, and then to determine, pursuant to art.2590 of the new Romanian Civil Code the material applicable law. Keywords: law applicable for the conclusion of the matrimonial agreement; property relations between spouses, matrimonial property regime, legal matrimonial regime; separation of property regime, conventional community regime. (search for similar items in EconPapers) Downloads: (external link) Related works: Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text Persistent link: https://EconPapers.repec.org/RePEc:lum:rev4rl:v:3-4:y:2013:i::p:13-19 Access Statistics for this article More articles in Jurnalul de Studii Juridice from Editura Lumen, Department of Economics on Behalf of Petre Andrei University Iasi |
Is your work missing from RePEc? Here is how to contribute.
Questions or problems? Check the EconPapers FAQ or send mail to .
EconPapers is hosted by the
School of Business at Örebro University.