Marriage is the freely consented union between a man and a woman, concluded in accordance with the legal provisions. It is regulated by the imperative norms of the law so that those who marry only have the possibility to accept or not the legal status as it is established by law.

Marriage involves the limitation of the individual liberty of each of the spouses. This limitation can be expressed by the mutual obligations between them. These restrictions are the essence of marriage, and the non-existence of any mutual obligation, respectively the absolute freedom of the spouses is incompatible with the status of married person, which can lead to the separation of spouses in fact or in law.

Where are spouses’ personal rights and duties contained?

The personal rights and duties of spouses are contained in Book II, Title II, Chapter V, Civil Code. Thus, the first provision on their marriage is found in article 308 and refers to equality between spouses in decision-making, they taking decisions by mutual agreement in everything about marriage.

Art. 309 para. (1) lays down the obligation of respect, fidelity and mutual moral support. Fulfilling the obligation of mutual respect implies respect for the personal life of the other spouse, includind respect for their opinions, beliefs, social relations in which they engage, as well as the profession they carry out. This obligation also entails avoiding violence of any kind and maintaining a balanced, tolerant and sincere family climate. Closely related to this is the obligation of mutual moral support aimed at the moral support of the other spouse in difficult moments that may occur during the marriage. Thus, when health problems occur, problems related to professional issues, etc. the other spouse has the obligation to support, encourage the partner to overcome them. The obligation of fidelity entails, on the one hand, the observance of the obligations imposed by the marriage status, and on the other hand it imposes the non-maintenance of extramarital intimate relations. Violation of this obligation may constitute a valid basis for divorce.

Does one spouse have the right to censor the other spouse’s correspondence?

These obligations are complemented by Art. 310 on the independence of spouses. It stipulates that “one spouse has no right to censor correspondence, social relations or the choice of the other spouse’s profession.” Thus, each spouse is free to choose a profession according to his/her professional training and preferences, without the other spouse imposing on him a certain point of view or a certain profession or without being necessary for the other spouse to give his consent with regarding the choice of his professional career. At the same time, each spouse can engage in their own social and professional relationships, respecting the limits imposed by the obligations of fidelity and respect mentioned above.

Article 309 para. (2) establishes the obligation to live together. In some situations spouses may live separately, for example, in a profession, health care, etc. The refusal of one of the spouses to live together is a valid ground for divorce, all the more so since its coercion by various measures to fulfill this duty would lead to the violation of personal freedom and is therefore excluded. The Romanian legislation gave the spouses the possibility to choose by common agreement their domicile or residence where they will live permanently. Thus, the family home is the common home of the spouses or, failing that, the home of the spouse where the children are.

The obligation to have a common name is provided by Art. 311, as follows: “Spouses are obligated to bear the name declared at the conclusion of the marriage. Neither spouse may request that the name be changed administratively except with the express consent of the other spouse.

Do we have to bear the expenses of marriage together?

The spouses are also obliged to contribute, in relation to each other’s means, to bear the expenses of the marriage – art. 325 para. (1). The agreement may stipulate otherwise, but it is considered unwritten if it is provided that only one of the spouses contributes exclusively to the expenses of the marriage. Also, according to Article 326, the work of any spouse in the household and for raising children is a contribution to the marriage expenses.

The status of married person also implies a series of rights. There are, therefore, the rights correlative to each obligation presented above – the right to receive from the other spouse moral support, respect, fidelity, the right to have a common home, to have a common name. In addition, the Civil Code provides a series of other property rights.

With regard to the property independence, each spouse may conclude any other legal acts with the other spouse or with third parties and each may make, without the consent of the other, bank deposits and any transactions in connection therewith.

Article 318 of the Civil Code provides for the right to information which entails that each spouse may ask the other to inform him of his income, debts and assets. In the event of an unjustified refusal, an aplication may be filled with the family court which may compel the spouse or third party to provide the requested information.

In the event that the family home is owned under a lease contract, each spouse has their own leasehold right, even if only one of the spouses is the contract owner or even in the case where the contract was concluded before marriage.

In conclusion, the status of married person imposes a series of rights and duties that arise right from the moment of concluding the marriage and that have an important role in their family life.

Denisa Tabacu

Legal Intern R&R Partners Bucharest


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