Consideration on the regulation of family housing in the new Romanian Civil Code and its

impact on issues of parentage, equality and gender.

1
Associate Professor PhD Nadia Cerasela Aniei
University of Dunarea de Jos,Galai, Faculty of La,
e!"ail# ncerasela$yahoo%co"
A&stract
In the Romanian legislation the family home has been brought under regulation over time by
different laws. At present, the provisions on family housing can be found in Housing Law no.
114/1996, Government Ordinance no. 40!""#
$
for the amendment of Housing Law no. 114/1996 and
the %amily &ode. %rom October !, $0!! shall come into force the new &ivil &ode
'
which stipulates
distinctly the concept of family home in art. '$!('$4.
)he article aims to present in the first section the provisions regarding the regulation of family
housing from different normative acts over time ending with the *ew &ivil &ode provisions.
In section $ of this article we will analy+e the right to use the home from the perspective of
research literature and ,urisprudence.
-ection ' of this article will be devoted to discussions of research literature and case law
regarding the family home under the provisions of art. '$!('$4 of the *ew &ivil &ode. In this regard,
we will consider each item individually supporting, contradicting views e.pressed in research
literature and ,udicial practice or where appropriate we will e.press our own opinions and try to
answer /uestions raised by the research literature and case law in this area.

!. Nor"ative acts that &rou'ht under re'ulation and 'overn the fa"ily housin'
!.!. Brief history of the family housing regulation
In Romanian law, family housing has been and is still regulated by several laws, namely0
!. 1ecree no. 2 of $' April !"43 4 !5 which sets to rights relations between landlords and
tenants
4
;
$. 1ecree no. "$ of !" April !"20 for the nationalization of certain buildings

in art. 2
provides0 6)he buildings owned by spouses or minor children shall be considered as belonging to a
single owner in this decree76
'. 1ecree no. #3!"2$ on the standardization! distribution and use of housing and settlement
of relationshi"s between owners and tenants
6
in art. '! provides0 6)he beneficiary of the lease may be
invo8ed by the holder of the contract, and in his absence by his family. 9paragraph !5 In the event of
divorce, if the spouses have not agreed otherwise, the benefit of the housing contract belongs to the
spouse who cares for their children, and in case they have no children, to the spouse who obtained the
divorce. In all other circumstances, the court that ruled the divorce will decide which one of the
spouses will have the benefit of the contract with regard to housing 9paragraph $5. :mployees who
have rooms in buildings in use of -tate bodies or institutions or of public economic enterprises or
organi+ations, or property of cooperative organi+ations and intended to serve as housing for their
!
Articol acceptat la #H$ %&' (&#$) *+,(LL- L+. +&' /)+0#(0$ 01&*$)$&0$ %213 /+)$&#+4$
$56+L(#( +&' 4$&'$)! 37 (6L($! %213! L1&'1& ,$#)1/1L(#+& 6&(8$)9(#-! +&4L(+.
$
;ublished in the Official Ga+ette, ;art I, no. !24 of <uly !4, !""#.
'
Adopted by =aw no. $3#$00" on the 0i:il 0ode, published in the Official Ga+ette of Romania, ;art I, no.2!! of <uly, $4
$00" with amendments by the Law on the im"lementation of the 0i:il 0ode, published in the Official Ga+ette of Romania,
;art I, no. 40" of <une !0, $0!!.
4
-ubse/uently amended by 1ecree no. '2" of 1ecember 4, !"43 4 $5 for the establishment! organization and
o"eration of the )ental 1ffice by 1ecree no. '> of %ebruary !', !"20 and repealed by 1ecree no. "$ of April !",
!"20 for the nationalization of "ro"erty.
2
;ublished in Official Ga+ette no. '> of April $0, !"20.
>
;ublished in Official Ga+ette no. !# of April 2, !"2$ and amended by 1ecree no. >$ of ?arch $0, !"2".
!
employees lose the benefit of the contract, as so as their families, in case the wor8 contract to which
that contract was bound is terminated 67
4. =aw no. 2 !"#' on housing management and the regulation of relations between landlords
and tenants 9republished on 1ecember '!, !"305 established in the art. $$0 6In the event of divorce if
the spouses have not agreed otherwise, the benefit of the contract regarding the housing belongs to the
spouse who cares for the children and in case they have no children, to the spouse who obtained the
divorce 9paragraph !5. In all other circumstances, the court that ruled the divorce will decide which
one of the spouses will have the benefit of the contract with regard to housing.69paragraph $5.
2. 1ecree no. '$!"24 on the im"lementation of the *amily 0ode and the 'ecree concerning
indi:iduals and legal "ersons which in art. 44 provides0 6-pouses are entitled to, by agreement,
re/uest registration in the cadastral register of spouses right on a shared or common good or the
8eeping of the /uality of common good in the transcriptions register, based on the act of ac/uisition.6
1.%. #he regulation of family housing in the current )omanian law until the entry into force of
the &ew 0i:il 0ode
(% Housing Law no% (()*(++,
7
-rovides#
@ Article $. ( 6)he terms used in this =aw have the following meanings0 a5Aousing0 Building
consisting of one or more habitable rooms, with outbuildings, with necessary e/uipment and facilities
which meet the living re/uirements of an individual or family.6
@ Article $#. ( 6In case of permanent abandonment of the residence by the holder of the lease or in
case of his death, the renting continues, as appropriate0 a5 to the husband or wife benefit, if they lived
with the owner, b5 to the descendants or ascendants benefit, if they lived with him, c5 to the benefit of
other people who had the same domicile with the owner at least one year and have been included in
the lease. 9paragraph !5 In case of more applications, the lease shall be transferred by court order.
9paragraph $5 In the absence of people who may re/uire the housing, according to the above, the lease
terminates within '0 days after leaving the residence by the holder of the contract or from the date of
his death registration.69paragraph ' 5
$. Government :mergency Ordinance no. 40!""#
3
for the amendment of Housing Law no.
114/1996 which through art. ! section !$ introduced after art. $#, art. $# inde. ! which had the
following wording0 6In the event of divorce if the spouses have not agreed otherwise, the beneficiary
of the housing contract is the spouse who cares for the children, and in case they have no children, the
spouse who obtained the divorce6. )his article was published after a little more than four months
e.pressly repealed by art. -ection # of =aw no. !">!""#
"
approving the Government :mergency
Ordinance no. 40!""#
!0
, which is why of course, art. $# inde. ! no longer reappears in the
republished te.t of the Housing Law &o 114/1996 ( with a new numbering of the articles ( of
1ecember, '! !""#.
!!
'. Although the %amily &ode
!$
does not cover the notion of 6common home6, this is implied
from the phrase 6obligation of cohabitation6 giving birth thus, according to the practice and research
literature, to the obligation of the spouses to live together. Aowever, the %amily &ode, through
different articles indirectly sets to rights the common housing0
@ Art. $ ( 6%amily members owe moral and material support to each other.6
@ Art. '0 ( 6;roperty ac/uired during marriage by either spouse, are from the date of their
ac/uisition common property of spouses. 9paragraph !5 Any contrary agreement is void. 9paragraph $5
)he common good /uality must not be proven. 69paragraph '5
@ Art. '$ ( 6-pouses respond with common goods for0 a5 e.penses incurred from the
administration of any common property, b5 obligations contracted together, c5 obligations contracted
#
;ublished in the Official Ga+ette of Romania, ;art I, no. $24 of October $!, !"">.
3
;ublished in the Official Ga+ette of Romania, ;art I, no. !24 of <uly !4, !""#.
"
;ublished in the Official Ga+ette of Romania, ;art I, no. '"' of 1ecember '!,!""#.
!0
;ublished in the Official Ga+ette of Romania, ;art I, no. ''! of *ovember $>, !""#.
!!
C., BeligrDdeanu. )egimul ;uridic actual al atribuirii locuin<ei comune a so<ilor =n cazul "ronun<>rii di:or<ului
?0urrent legal regime of common housing allocation in case of di:orce in E1reptulF maga+ine, Gear IH, '
rd

series, *o. 2!""3, Bucharest, p. '2.
!$
:ntered into force on %ebruary !, !"24 with subse/uent amendments.
$
by each spouses to fulfill the ordinary needs of marriage7 d5 damage caused by ac/uisition by one of
the spouses of public property assets, if by this they increased the common property of spouses.6
@ Article '4 ( 6-pouses administer and use common property together and dispose of them.
9paragraph !5 Any of the spouses, e.ercising these rights alone is considered that he has the
consent of the other spouse. 9paragraph $5 Aowever, neither spouse can alienate or entail a land or
a building that is part of the common property unless heshe has the e.press consent of the other
spouse. 69paragraph '5
@ Article '>. ( 6At the dissolution of marriage, common assets are divided between the
spouses according to an agreement between them. 9paragraph !5 If spouses fail to agree on sharing
,oint property, the court will decide. 9paragraph $5 %or good reasons, common property, in whole
or in part, can be divided by court order during marriage. 9paragraph '5 Individed goods and
those ac/uired further, are common property. 69paragraph 45
@ Article !00 ( 6A minor child lives with his parents. If parents do not live together, they will
decide by mutual agreement, to which one of them their child will live. 9paragraph !5 In case of
disagreement between parents, the court, listening to the guardianship authority and the child, if
the child has reached the age of ten, will decide, ta8ing into account the interests of the
child.69paragraph $5
)he provisions of the above normative acts are corroborated with the &ivil &ode 9Art. !4!0(!42'5
and &ivil ;rocedure &ode 9art. >!' inde. ! par. 45 provisions5
!'
.
3. Regulation of the family housing in the ew Civil Code
)he new &ivil &ode
!4
sets to rights the concept of the family housing in art.'$!('$4 distinctly.
Article '$! ( Definition. %amily housing is common housing of spouses or, in its absence, the
home of the spouse who cares for the children 9paragraph !5. :ither spouse may re/uest the
registration in the cadastral register of a building as family home, even if heshe is not owner of the
building 9paragraph $5.
Article '$$ ( .he re'i"e of le'al docu"ents. Jithout the written consent of the other spouse,
neither spouse, even as e.clusive owner cannot have rights to the family home and cannot sign
documents that would affect its use 9paragraph !5. Also, a spouse cannot move from home, the goods
that decorate the family home and heshe may not dispose of them without the written consent of the
other spouse 9paragraph $5. If consent is refused without a legitimate reason, the other spouse may as8
the guardianship court to authori+e the conclusion of the document 9paragraph '5. )he spouse who has
not consented to the document may re/uest its cancellation within one year from the date on which
heshe became aware of it, but not later than one year after the termination of the matrimonial regime
9paragraph 45. ;rovided that the family home is not registered in the cadastral register, the spouse who
has not given consent cannot rescind the document, but only as8 for damage compensation from the
other spouse, unless the third party ac/uired, in another way, the /uality of family housing 9paragraph
25. )he provisions of paragraph 2 apply to documents concluded in violation of paragraph $
9paragraph >5.
Article '$' ( /i'hts of s-ouses on rented housin'. If the house is held under a lease contract,
each spouse has a right to housing, even if only one of them is the holder of the contract or the contract
is signed before marriage contracting 9paragraph !5. )he provisions of art.'$$ shall apply accordingly
9paragraph $5. In case of death of one spouse, the surviving spouse shall continue to e.ercise hisher
housing right, unless heshe e.pressly waives it in the time limit set in art. !3'4 of the &ivil &ode
9paragraph '5.
Article '$4 ( Allocation of &enefit of the lease. After the dissolution of marriage, if both spouses
cannot use the home and they do not come to an agreement, the benefit of the lease may be assigned to
one of the spouses, considering the order, the best interests of minor children, the fault in divorce and
!'
C., BeligrDdeanu. )egimul ;uridic actual al atribuirii locuin<ei comune a so<ilor =n cazul "ronun<>rii di:or<ului
90urrent legal regime of common housing allocation of the s"ouses in case of di:orce@ in E1reptulF maga+ine,
Gear IH, '
rd
series, *o. 2!""3, Bucharest, p. '#.
!4
Adopted by Law no. %AB/%229 on the 0i:il 0ode, published in the Official Ga+ette of Romania, ;art I, no.2!! of <uly $4,
$00" with amendments by Law on the im"lementation of the 0i:il 0ode, published in the Official Ga+ette of Romania, ;art I,
no. 40" of <une !0, $0!!.
'
former spouseKs own housing opportunities 9paragraph !5. )he spouse who was given the benefit of the
lease is obliged to pay the other spouse an allowance for installation e.penses in another residence,
unless the divorce was pronounced in the e.clusive fault of the latter. In case of common property,
compensation may be attributed, at partition, from the share due to the spouse who was given the
benefit of the lease 9paragraph $5. Allocation of benefit of the lease is performed with the summoning
of the lessor and shall become effective at the date the court decision becomes final 9paragraph '5. )he
provisions of paragraphs !(' similarly apply if the property is owned ,ointly by both spouses, the
allocation of benefit of con,ugal household stays effective until the partition decision becomes final
9paragraph 45.
0% 1-ecifications of the research literature and 2uris-rudence on the ri'ht to use the
housin'
)he research literature states that the term of common housing should not be mista8en for the
notion of domicile. )herefore, there may be situations where the spouses have separate domiciles, but
also a common housing, the latter being sub,ect to special protection regime. )hus, former -upreme
&ourt decided that certain circumstances, such as those imposed by the e.ercise of professions or
trades, by the need for speciali+ed training, health care or even the situation when none of the spousesL
housings does not provide location standards, ,ustify separate homes of the spouses
!2
.
)he domicile of the natural person is the address where the center of gravity of the social and
economic life of the individual is located. )he living of this person at this address must no longer be
permanent
!>
.
)he right to use the housing may be ac/uired according to =aw no. !!4!""> or according to
common law Art. !4!0 ( !42' of the &ivil &ode M in case of private property dwellings located in rural
areas, as well as of those in urban areas which on <anuary !, !""0 did not form the sub,ect of a lease.
!#
)he right to use
!3
the house belongs to all family members, even if the lease was signed before
marriage, therefore the right in /uestion was a sui generis indivisible status whose sub,ects are all
family members, without establishing any fi.ed due to each, even if the sharing in fact of the housing
would actually be possible.
Regarding the right to use the housing ac/uired under the provisions of the &ivil &ode, whether its
private good or common good is determined by the time of the lease contract, as far as the lease
concluded under the e.emption from common law is concerned, the rights conferred by it cannot be
included either among common property or among own property mass.
!"
)he right to use the housing
is common property if the lease ended during their marriage and is own property if it ended before
marriage
$0
.
)he right to use housing belongs to all family members, each having own right to home use
$!
.
)he spouse ac/uires therefore under the lease contract
$$
, along with the lease holder and the other
!2
A., Al., Banciu. )a"orturile "atrimoniale dintre so<i ?/atrimonial )elations between 9"ouses@! Aamangiu ;ublishing
Aouse, $0!!, p. $2.
!>
*., &., 1ariesacu. )a"orturile "atrimoniale dintre so<i =n dre"tul interna<ional "ri:at ?/atrimonial )elations between
9"ouses in /ri:ate (nternational Law@! &.A. Bec8 ;ublishing Aouse, Bucharest, $003, p. >#.
!#
:., %lorian. 're"tul familiei ?*amily Law@! '
rd
edition, &.A. Bec8 ;ublishing Aouse, Bucharest, $0!0, p. !4".
!3
A., Bacaci. Niorica(&laudia, 1umitrache. &risitina, &odruOa, Aageanu. 're"tul familiei ?*amily Law@! >
th
edition, &.A.
Bec8 ;ublishing Aouse, Bucharest, $00", p. #3.
!"
:., %lorian. 're"tul familiei ?*amily Law@!'
rd
edition, &.A. Bec8 ;ublishing Aouse, Bcharest, $0!0, p. !4".
$0
I., ;., %ilipescu. A., I., %ilipescu. #ratat de dre"tul familiei ?*amily Law #reaty@! 3
th
edition, &.A. Bec8 ;ublishing Aouse,
Bucharest, $00>, p. !'"0 1ariescu, *., &.. 1ariescu, &. ;etraru, A., R.. 9$00"5, 're"tul familiei! :dition =umen, Iasi.
$!
%r., 1ea8. -t., &Drpenaru. 're"t ci:il ?0i:il Law@! ).I.B., !"3', p.!$>. If one spouse left or was e.pelled from the common
home, alone or together with their children, he does not lose through non(use his housing right and may re/uire to live again
in that space at any time. )he evacuation of the spouse from the home may not be re/uired but the evacuation of concubines
may be.
$$
&osma, 1oru. 0ontractul de =nchiriere a locuin<ei ?Housing Lease@! CtiinOificD Pi :nciclopedicD ;ublishing Aouse,
Bucharest, !"##, p. 3.
)he house lease is an agreement of will by which a person 9natural or legal5 called lessor underta8es to provide
to another person named tenant 9or lessee5 the use of temporary housing, and the tenant underta8es to pay the
rent. )his contract is a variety of the lease contract, applicable to various goods, individual variety ( in this case ( with its
specific sub,ect0 the home. )he name of the lease contract is to be used to describe the legal operation defined above, as well
4
family members, the right to use the housing, without distinction weather the lease was signed before
marriage or during it
$'
.
As family members, the spouses are sub,ect ( in principle ( in their housing relations, to the
same rules as the other family members. As such, they have e/ual housing rights regardless of the
/uality of the /uality of holder of one of them.
$4
.
It should be specified that family members do not ac/uire own rights to housing in case of the
rent of housing facilities for special purposes, when the use of housing is additional to the contract of
employment M such as housing for wor8, intervention, protocol or wor8 rooms. In all these cases, the
family members, in terms of housing, have derived rights additional to the contract holderLs right.
$2

In relation to the changes in the legislation, presented in section !, in practice arose the
/uestion weather at present, the courts, after declaring the divorce, have or not power to attribute
benefit of the lease for common home of the spouses, and, if so, what is the legal basis of such
competence depending on which the court will decide by reference to such an attribution.
$>
.
Analy+ing the solutions of the research literature
$#
another e.pert in the field
$3
concluded that
6art.$# paragraph ! letter a of =aw no. !!4!""> may constitute the legal basis of 6the agreement
transfer6 by courtKs divorce decision only if, prior or "endente lite! the spouse holder of the contract
left for good the 6domicile6 located in the common house of the spouses, which was the sub,ect of the
lease contract in /uestion. &onversely, if the holder spouse has not left the house for good, than the
rule cannot legally fundament the attribution of the benefit of the contract to the other spouse, by
courtKs decision that pronounces the divorce. 6
Another /uestion is0 Jhat is currently the legal provision allowing the court which
pronounces the divorce to attribute the lease contract to the other spouse, by hypothesis, non(holder of
that contractQ )he answer is0 even if the provisions of art.$$ of =aw no. !"#' and those of art. $#
inde. ! of =aw no. !!4!""> are repealed and the provisions of Article '3 paragraph 4 of the %amily
&ode and of art. >!' inde. ! paragraph 4 of the &ode of &ivil ;rocedure are effective the court that
pronounces the divorce was and is legally competent to settle the additional re/uests on attribution
9use5 of the common home of the spouses
$"
.
Aowever, if there are minor children involved, the court shall assign the benefit of the lease to
the spouse who got custody of the children.
In essence, therefore, to the e.tent that there are no minor children involved and no agreement
between spouses is performed, along with the pronouncement of divorce, if an e.plicit additional
re/uest is made in this regard based on a sovereign appreciation, the court which pronounces the
divorce decides, as appropriate, either the maintaining of the benefit of the lease holder and the
evacuation of the other spouse or the assignment of the lease benefit to the latter ( which thus becomes
owner ( and evacuation of former owner.
In case of special regime housing 9housing for wor8, intervention, and protocol5 the court
which pronounces the divorce, usually cannot assign the benefit of the lease to none other than the
holder
'0
7 by e.ception, according to the foregoing, the lease is attributable to the other spouse M who is
as for the ac8nowledgment of this operation. )here are two elements to be retained in particular for defining the lease
contract0 home use provided by the lessor and the rent paid by the lessee.
$'
I., ;., %ilipescu. A., I., %ilipescu. #ratat de dre"tul familiei ?*amily Law #reaty@! 3
th
edition, &.A. Bec8 ;ublishing Aouse,
Bucharest, $00>, p. !'".
$4
&osma, 1oru. 0ontractul de =nchiriere a locuin<ei ?Housing Lease@! CtiinOificD Pi :nciclopedicD ;ublishing Aouse,
Bucharest, !"##, p. 4>.
$2
Ibidem.
$>
C., BeligrDdeanu. )egimul ;uridic actual al atribuirii locuin<ei comune a so<ilor =n cazul "ronun<>rii di:or<ului ?0urrent
legal regime of allocation of common housing of the s"ouses in case of di:orce@ in E1reptulF maga+ine, Gear IH, '
rd
series,
*o. 2!""3, Bucharest, p. '2.
$#
%r., 1ea8. 0ontractul de =nchirie a locuin<ei ?Housing Lease@! Actami ;ublishing Aouse, Bucharest,!""#7 I., ;., %ilipescu.
A., I., %ilipescu. #ratat de dre"tul familiei ?*amily Law #reaty@! 3
th
edition &.A. Bec8 ;ublishing Aouse, Bucharest, $00>, p.
!'"7 N., ?., &iobanu. #ratat teoretic Ci "ractic de "rocedur> ci:il> ?#heoretical and /ractical #reaty of 0i:il /rocedure@!
vol. II, *aOional ;ublishing Aouse, Bucharest,!""#, p. 2$>.
$3
C., BeligrDdeanu. )egimul ;uridic actual al atribuirii locuin<ei comune a so<ilor =n cazul "ronun<>rii di:or<ului ?0urrent
legal regime of allocation of common housing of the s"ouses in case of di:orce@ in E1reptulF maga+ine, Gear IH, '
rd
series,
*o. 2!""3, Bucharest, p. '>.
$"
Idem, p. '#.
'0
I.;. %ilipescu, op. cit. p.$#3($#".
2
not the holder ( but only in very special cases 9very rare in practice5 in which the latter fulfills at the
same time the conditions to become the holder of the lease for that special regime housing
'!
.
&ase law has ruled in matters of divorce, that when the home is common property of spouses
and partition of common propriety during the divorce process has not been re/uested the use of
housing, common property is assigned to one of the spouses under law 9for e.ample0 where there are
minor children, innocent spouse5.
In conclusion, the concept of family housing is therefore a notion of fact, not of law, and is
the home where the family actually lives. Only in such a way protective rules find their reason for
their application, because what is protected is common interest of the family. Given the principle
according to which the spouses ,ointly decide on all matters of marriage, it follows that that the family
home is chosen by spouses under mutual agreement, be it the home of origin 9initial5 or another.
'$

3% Discussion on the fa"ily housin' under the -rovisions of the Ne Civil Code
%rom the provisions of art. '$! paragraph ! of the new &ivil &ode we see that the family
housing means 6common housing of the spouses or, the home of the spouse who cares for the
children6.
)he definition of the family home, involves two elements0 an ob,ective, material one,
materiali+ed in residential property, the second one, volunteer, referring to the damage of that familyLs
building, to the damage of family life in that place
''
.
By introducing the new &ivil &ode of the paragraph. $ of art. '$!, the family housing has a
special legal regime as 6either spouse may re/uest the registration in the cadastral register, under the
law, of a building as family home, even if they are not the owner of the building6.
%rom the provisions of art.'$$ paragraph ! and $ of the new &ivil &ode it is clear that0 even if
the home is property of one spouse as long as it is the family home, none of the spouses cannot0
R dispose of the rights to the family home7
R sign any document which would affect its use7
R dispose of the goods from that home without the consent of the other spouse.
In conclusion, the provisions of art.'$! paragraph $ and '$$ paragraph ! and $ of the new
&ivil &ode, we note that the family home has a special legal regime. )hus, even if one spouse is the
e.clusive owner of the property constituting the family home, heshe will not be able to alienate it on
their own, without the written consent of the other spouse, who is not the owner. )he same treatment is
applied to the other home goods.
)he non(observance of the provisions of paragraphs ! and $ of art. '$$ of &ivil &ode draws
relative nullity if the spouse who has not consented to the documentKs completion as8s for its
e.tinguishment within one year from the date on which he became aware of it, however not later than
one year from the date of termination of the matrimonial regime.
If the spouse has not consented on0 the home registration in the cadastral register, the
conclusion of legal documents, movable property belonging to the family home, he cannot as8 for the
e.tinguishment of the document, but only for damage compensation from the other spouse , unless the
third party purchaser has ac/uired in another way, the /uality of family housing.
Aowever if the spouse is in bad faith and refuses to give hisher consent on the conclusion of
an act then the other spouse can as8 the guardianship court to authori+e the completion of the act.
Je note that, by inserting in the new &ivil code of these special provisions on the family
home, the right of disposal of the owner over the property inhabited by the family within the meaning
of e.press restriction of this right is waived. )his restriction of the disposition right of the owner
should be seen only in the conte.t of the registration of hisher property in the cadastral register as
'!
C., BeligrDdeanu. )egimul ;uridic actual al atribuirii locuin<ei comune a so<ilor =n cazul "ronun<>rii di:or<ului
?0urrent legal regime of allocation of common housing of the s"ouses in case of di:orce@ in E1reptulF maga+ine,
Gear IH, '
rd
series, *o. 2!""3, Bucharest, p. '3.
'$
?., Avram. &., *icolescu. )egimuri matrimoniale ?,atrimonial )egimes@! Aamangiu ;ublishing Aouse, Bucharest, $0!0,
p. !!>.
''
&., )uruiau. 'es"re "osibilitatea e:acu>rii din domiciliul comun al so<ului =n caz de :iolen<> eDercitat> asu"ra so<iei
?+bout the "ossibility of e:acuation from the common domicile of the s"ouse in case of :iolence eDerted on the wife , in
1reptul maga+ine no. !$!""$.
>
6family housing.6 )a8en out of the conte.t, it could be interpreted as a violation of constitutional
norms that guarantee the e.ercise of ownership. In the absence of the home registration in the
cadastral register, non(proprietary spouse of the estate, who has not given hisher consent in case of
alienation by the owner can claim damages only.
'4

#he "ossibility of a s"ouse to demand the e:acuation of the other s"ouse from the family
housing. )a8ing into account the re/uirement of cohabitation of the spouses the following /uestion
was raised0 why would one spouse re/uire the evacuation of the other spouseQ Jhat would cause such
an actionQ Over time many hypotheses have been raised0
@ a first hypothesis refers to the inadmissibility of the spouse evacuation based on the reasoning that
such an evacuation would lead to factual separation, which implicitly contradicts the principles of
marriage7
@ another hypothesis argues that if one spouse ma8es by means of hisher attitude the living with the
other spouse impossible, the innocent spouse may re/uire the evacuation of the guilty spouse. )his
opinion prevailed and the practice adopted it since, finally, the protection of other values prevailed,
namely the right to life and personal integrity, in relation to the interest of family integrity, even if the
guilty spouse is co(owner of home. )he following /uestion arises0 can we tal8 about the integrity of
the family where the guilty spouse trespasses the moral and spiritual principles, the privacy right and
the right to a decent life, abusing the trust of the other spouse, humiliating the spouse, causing more
distress on the innocent spouseQ )he housing evacuation action is permissible only for good reasons,
usually for violence. According to art.23! of the &ode of &ivil ;rocedure the action is allowed through
presidential ordinance7
@ In the last case they try to answer the /uestions0 In case one spouse leaves the family home, can the
spouse start an action to compel hisher spouse to return to the common houseQ )he research literature
states that in the practice of some courts such action was considered inadmissible. &an this point of
view be stated without a doubtQ Is such a decision of the court correct, because it still raises a
/uestion0 Jhat value is assigned to the duty of cohabitationQ Also, the author states
'2
0 6)here is a
principle of law which confirms that the party without fault has the possibility to choose between
maintaining the given situation or terminate it. IsnLt this, in this case, a violation of the innocent
spouseLs possibility to avail themselves from the obligation of cohabitation of the other spouse,
leaving himher no other possibility and forcing himher so to see8 the dissolution of marriage,
although heshe, the innocent spouse, does not want itQ Jhat would be then the repair of the moral
damage ( and only ( suffered by the innocent husbandQ6 Je would answer to this /uestion this way0 In
such a situation we believe that the innocent spouse can only waive to live together with the guilty
spouse, because when agreements between spouses have failed repeatedly it is best to end such a
relationship as people cannot change. A hope for the better is naive when it comes to people and their
personality. If love cannot refrain the guilty spouse from such acts, then nothing can stop him. And
miracles do not e.ist in this case. :ven when the guilty husband has mental problems and does not
want or cannot be determined to go to a psychologist 9psychiatrist5 and his family 9parents, brothers,
sisters, etc..5 do not get involved in helping himher, the innocent spouse has only the duty to save
himselfherself weather himher or the guilty husband stays or leaves the family home. One cannot
save someone through love if heshe or the family of origin does not want to save himher for various
reasons 9such as0 for fear that hisher psychological problems would become public0 depression,
frustration, se.ual obsessions, immaturity, infantilism, dual personality, etc.5.
Given the comments in the research literature and practice in the field
'>
on the family home
regarding the "ossibility of a s"ouse to reEuest the e:acuation of the other s"ouse from the family
home we will 8eep under review the following issues that re/uire some discussion0
a. the case in which the family home is common "ro"erty of s"ouses;
b. the case in which the family home is own "ro"erty of one of the s"ouses7
'4
A., Al., Banciu. )a"orturile "atrimoniale dintre so<i ?/atrimonial )elations between 9"ouses@ ! Aamangiu ;ublishing
Aouse, $0!!, p. '!('!.
'2
A., Al., Banciu. )a"orturile "atrimoniale dintre so<i ?/atrimonial )elations between 9"ouses@! Aamangiu ;ublishing
Aouse, $0!!, p. $>($#.
'>
%or details see A., Al., Banciu. )a"orturile "atrimoniale dintre so<i ?/atrimonial )elations between 9"ouses@! Aamangiu
;ublishing Aouse, $0!!, pp. $'('$7 ?., Avram. &., *icolescu. )egimuri matrimoniale ?,atrimonial )egimes@! Aamangiu
;ublishing Aouse! Bucharest, $0!0, pp. !!2(!4!.
#
c. the case in which the family home is held under a lease.
a. #he case in which the family home is common "ro"erty of s"ouses. In relation to the family home
common property, we 8now that the spouses have e/ual rights over the housing. If the spouses are in
the process of divorce and of partition after that, if only the dissolution of marriage proceedings
through divorce have been started, without as8ing for a partition of common property, the court may
order as interim measures or by presiding ,udgeLs order, the division or allocation of the home to one
or the other spouse, provisionally, until final and irrevocable resolution of personal relations between
them
'#
.
)he /uestions raised are0 Jhen spouses have completed the divorce and partition trial which
one of them will get the common residence and sole ownership of the property that has been the ob,ect
of common houseQ Jhat about mobile assetsQ Je support the view
'3
based on which, if the home
may not be used by both spouses, and they have not reached any agreement, the criteria that the courts
will use in the order prescribed by law are0
R the criterion of the best interests of minor children. Article $>' of the new &ivil &ode
establishes the principle of the best interests of minor children
'"
which in paragraph ! provides0 6any
action regarding the child, regardless of its author, must be ta8en in the best interests of the child.6 Je
note that the court in such a situation has the following options0 assigns the common home to the
spouse at whom the childLs home was established if parental authority is shared by divorced spouses7
the home belongs to the spouse to whom children have been entrusted, when the divorce court has
ordered such a measure. Jhatever the chosen possibility, the spouse who remains in the common
house will pay to the other spouse the balancing payment appropriate to the share ownership of the
other spouse after the invalidation of the ,oint property state. -till, who gets the common home when
there are two minor children involved and each spouse has one child in custodyQ Je believe that in
this situation we should first of all consider the childKs mental state, then we should consider which
spouse is to blame for the dissolution of marriage and thus we will determine to whom we attribute the
common home. Aowever, we believe that the spouse who remains in the common house 9when the
marriage is dissolved by fault of both spouses5 should pay the other spouse 9who has in hisher care a
minor child5 an allowance to cover the costs of installation to another home. Je also believe that if the
marriage is dissolved out of e.clusive fault of one spouse 9eg0 wifeLs infidelity
40
5 and children remain
with her, depending on her material possibilities she should pay to the innocent spouse an allowance to
cover the installation e.penses in another home. Je base the proposals on the provisions of art. '$4
paragraph $ of the new &ivil &ode which provides0 6)he spouse who was given the benefit of the
lease is obliged to pay the other spouse an allowance for installation e.penses in another residence,
unless the divorce was pronounced out of the e.clusive fault of the latter 6.
R If the first criterion cannot be applied 9for e.ample, there are no minor children involved5,
the subse/uent criterion is the fault in divorce. In this case, we believe that the common ownership
will be allocated to the innocent spouse who will pay to the other spouse the balancing payment
corresponding to the share ownership, the appropriate share of any compensation after the invalidation
of the ,oint property state.
R If neither the second criterion can be applied 9eg marriage is dissolved from the fault of
both spouses5 we believe that the court will attribute the home to the spouse who is in a special
situation ta8ing into account a number of elements as such as0 occupation, health status, age, distance
to wor87 the spouse who remains in the common home shall pay to the other spouse an allowance to
cover costs of installation in another home.
%rom the interpretation of paragraph $ of art. '$4 of the new &ivil &ode we can infer that when
the divorce was pronounced in the e.clusive fault of the spouse who could benefit from allowances to
cover installation e.penses in another home the spouse who was attributed the common house is no
longer obliged to M pay this allowance. Also, the spouse from whose fault the marriage brea8s cannot
benefit from an installation allowance in another home or from other compensation that can be ta8en
in case of partition, from the /uotum due to the spouse who was assigned the common house in case
'#
Al. Bacaci. op. cit., p. '37 I.;. %ilipescu. op. cit., p.4.
'3
?., Avram. &., *icolescu. op. cit. pp. !'#(!4!.
'"
-ee :., %lorian. op. cit. pp. '!!('!2.
40
Art. '0" paragraph. ! of the &ivil &ode provides0 6-pouses owe each other respect, fidelity and moral support.6
3
heshe would not have had the necessary amount representing the allowance in cash or in a ban8
account.
According to art.'$4 paragraph 4 of the new &ivil &ode 6provisions of paragraphs !(' similarly
apply if the property is owned ,ointly by both spouses, the allocation of the con,ugal household benefit
remaining in effect until the separation decision becomes final. 6-o the allocation of the con,ugal
housing benefit that is common property of both spouses stays effective only until the partition
decision stays final.
b. #he situation in which the family home is owned by one s"ouse. It seems that in this situation,
in case of divorce and partition, with the property owned by one spouse, the non(owner spouse, even if
innocent, must leave the property. )he /uestions that arise
4!
in this situation are0 If the non(proprietary
spouse has no fault in the dissolution of marriage, on the one hand, and on the other hand, it is 8nown
that no one can claim oneLs own misconduct in the promotion of an action and, moreover, if we
consider that the obligation of co(habitation has been infringed by the owner spouse, what is the
possibility of the non(proprietary spouse to defend their right to live in the building destined for family
housingQ &an the non(proprietary and innocent spouse start an evacuation action of the proprietary
spouse guilty of acts of violence and the disintegration of marriageQ )he doctrine and case law allows
for the action of evacuation of the accused proprietary spouse from hisher own home on the ground of
turbulent and aggressive behavior which has to be repressed and punished. )his measure is not final
and therefore is not a denial of his property rights. %ollowing the completion of divorce and given the
fact that ownership is guaranteed by art. 44 of the Romanian &onstitution
4$
the court must ta8e into
account this aspect, and for the completion of the trial, the non(proprietary spouse must leave the
property that has been the ob,ect of common home. )he research literature
4'
states that0 6Aowever, if
the attitude of the proprietary spouse was /ualified as an abuse of law in family relations, and himher
as a turbulent and aggressive person, donLt we have to 8eep in mind that, although non(proprietary, is
not fair for the innocent spouse to be deprived of a right so intimately connected with hisher life, and
for the other guilty spouse not to be sanctioned for hisher abuse in relation to hisher right of owner of
the family homeQ -o far this problem has not been set to rights, but the new &ivil &ode, through the
mandatory rules of the primary system, set to rights by art. '$!('$$ the legal status of family housing,
establishing, finally, the mandatory rules of protection of this legal institution. 6Aowever, by the
mandatory rules established by art. '$!('$$ of the new &ivil &ode it cannot be concluded that after
completing the divorce trial the innocent non(proprietary spouse would have any right to the family
home. Indeed, these mandatory rules provide that 6the family housing is the common housing of the
spouses7 without the written consent of the other spouse, none of the spouses, even if only owner,
cannot have rights to the family housing and cannot sign legal acts that would affect its use7 a spouse
cannot move from home the goods that decorate the family housing and heshe may not dispose of
them without the written consent of the other spouse6 but we refer to the /uality of spouse and after
the completion of divorce the /uality of spouse is void. In conclusion, the innocent spouse is not
entitled to the home of the guilty husband owner of the family housing. Article '33 of the &ivil &ode
provides0 61istinctly of the right to compensatory allowance provided in art. '"0, the innocent spouse,
who suffers damage through the divorce, may as8 the guilty spouse to offer compensation.
Guardianship court resolves the re/uest by the decision to divorce6, and art. '"0 of the new &ivil &ode
provides0 6If the divorce is pronounced due to e.clusive fault of the defendant spouse, the claimant
spouse is eligible for compensatory benefit to compensate, as much as possible, for a significant
imbalance that divorce would cause in the conditions of life of the one who re/uests it. 9paragraph !5.
&ompensatory benefit may only be granted if the marriage had lasted for at least $0 years.6 9paragraph
$5. Je note that the solution is given where the action is brought to court by innocent claimant spouse
husband and the situation where the action is brought to court by the guilty spouse who admitted
hisher fault is not considered. Je believe that, in this case, the innocent spouse is eligible for
compensation and compensatory benefit. )here is the situation when the spouses divorce by mutual
4!
A., Al., Banciu. )a"orturile "atrimoniale dintre so<i ?/atrimonial )elations between 9"ouses@! Aamangiu ;ublishing
Aouse! $0!!, p. $3($".
4$
Article 44 of the &onstitution provides0 6)he right to private property and state debts are guaranteed. )he
content and limitations of these rights are established by law 6..
4'
Al., Banciu. )a"orturile "atrimoniale dintre so<i ?/atrimonial )elations between 9"ouses@! Aamangiu ;ublishing Aouse!
, $0!!, p. $".
"
consent 9for whatever reason in order not to ma8e public the mental and physical violence e.ercised
by the guilty spouse5 although the spouse proprietary of the family home has the e.clusive fault. In
this home there are gathered memories, ,oys, sorrows, movable goods. One goes one day without
someone telling one to leave the home. One leaves everything in that house as if it would be a day li8e
any other, only one gets oneLs clothes. Infortunately, usually the guilty spouse, even in this situation
will find e.cuses and even many times, they will accuse and humiliate the innocent spouse to e.cuse
their own mista8es. In this case, we can no longer tal8 about compensation and benefits compensation
under art. '33 and '"0 of the new &ivil &ode, but about feelings0 love, consciousness, the recognition
of guilt, etc..
c. #he situation when the family home is held under a lease. )he provisions of art.'$' and '$4 of
the new &ivil &ode are binding and bring under regulation the rights of spouses on rented housing and
to whom is assigned the lease benefit at the dissolution of marriage.
According to the legislator, the necessity of special regulation of housing rights of spouses on
rented housing is re/uired to ensure minimum protection of 8ey issue of economic relations between
spouses ( that of living a con,ugal family life in the home M both in times of con,ugal peace, and in
times of crisis, when the spouses are separated or divorced.
44
.
%rom the mandatory rules of art. '$' paragraph ! of the new &ivil &ode it can be inferred that
where the housing is held under a lease, each spouse has an own right to housing, even if only one of
them is the holder of the contract or the contract is signed before marriage.
;aragraph ' of art. '$' of the new &ivil &ode sets to rights the situation when one of the
spouses had died. )hus, if one spouse had died, the surviving spouse continues to e.ercise hisher
housing right, unless it e.pressly waives it, within the time limit set in art.!3'4 of the new &ivil
&ode
42
. )he interpretation of provisions of art. !3'4 of the new &ivil &ode shows that within '0 days
the surviving spouse may choose to continue the lease until its e.piration. If the surviving spouse as8s
for the continuation of the contract heshe will sign the lease contract.
;aragraph $ of art. '$' of the new &ivil &ode provides that the provisions of art. '$$ shall
apply accordingly. In conclusion, even if the house is held under a lease, as long as it is the family
home, none of the spouses can0
R dispose of the rights to the family home7
R end any act which would have affect its use7
R dispose of the mobile goods from the respective house without the consent of the other spouse.
)he non(observance of provisions of paragraphs ! and $ of art. '$$ of the new &ivil &ode
draws relative nullity if the spouse who has not consented to the act completion as8s for its
termination within one year from the date on which heshe became aware of this, however not later
than one year after the termination of the matrimonial regime.
If the spouse has not consented on0 registering the housing in the cadastral register, the
conclusion of legal documents, movable property belonging to the family home cannot rescind the act,
but only as8 for damages from the other spouse , unless the third party purchaser has 8nown, in
another way, the /uality of family housing.
Aowever if the spouse is in bad faith and refuses to give hisher consent on the conclusion of
an act then the other spouse can as8 the court for guardianship to authori+e the completion of the act.
Article '$4 paragraph ! of the new &ivil &ode states0 6At the dissolution of marriage, if the
use of the home by both spouse is not possible and if they do not get along, the benefit of the lease
44
A., Al., Banciu. )a"orturile "atrimoniale dintre so<i ?/atrimonial )elations between 9"ouses@! Aamangiu ;ublishing
Aouse, $0!!, p. '$.
42
Article !'34 of the &ivil &ode provides0 6)he home lease ceases within '0 days from the date of registration
of death of the tenant 9paragraph !5. 1escendants and ascendants of the tenant have the right, within the period
specified in paragraph !, to opt to continue the lease until its e.piration, if they are mentioned in the contract and
if they have lived with the tenant. )he provisions of art. '$' paragraph ' are applicable in case of the surviving
spouse 9paragraph $5. ;ersons under paragraph $, who re/uested the continuation of the contract, designate by
agreement, the person or persons who shall sign the lease instead of the deceased tenant. If they do not reach an
agreement within '0 days from the date of registration of death of the tenant, the designation is made by the
landlord 9paragraph '5. -ubletting consented by the tenant ceases at the deadline provided in paragraph ! if the
lease does not continue under paragraph $. In the latter case, the person designated under paragraph ' shall sign
the subletting contract instead of the deceased tenant 9paragraph 45. 6
!0
may be assigned to one of the spouses, ta8ing into account the orders, the best interests of minor
children, the fault in divorce and the former spousesL own housing opportunities. 6Je note that the
provisions of this article shall e.pressly provide the criteria for the allocation of home in case of
divorce, to one spouse in the following order0
a. the criterion of minor childrenLs best interests. )a8ing into account the provisions of art. '"# of the
&ivil &ode, the courtKs main purpose will be to determine the childKs home, according to art. 400 of the
&ivil &ode, usually at one of the parents, ta8ing into account the best interests of the child7
b. the fault in divorce criterion 9for e.ample0 breach of the duty of loyalty5 ( as subse/uent criterion7
c. assignment of the lease benefit 6according to former spousesL own housing opportunities6 9where
for e.ample there is a ,oint fault in divorce of the spouses5 Mas the last criterion.
;aragraph $ of art. '$4 of the new &ivil &ode provides0 6)he spouse who was granted the
benefit of the lease is obliged to pay the other spouse an allowance for installation e.penses in another
residence, unless the divorce was pronounced in the latterLs sole fault. If there is common property,
compensation may be attributed at partition, from the share due to the spouse who was given the
benefit of the lease. 6)he provisions of paragraph $ of art. '$4 of the new &ivil &ode show that when
the divorce is pronounced due to e.clusive fault of the spouse who benefited from an allowance to
cover costs of installation in another home, the spouse who was given the benefit of the lease is no
longer obliged to pay an allowance and cannot be imputed at partition the share due to the spouse who
was awarded the benefit of the lease.
)he allocation of the lease benefit is performed with the summoning of the lessor and
becomes effective from the date the court decision became final.
&onclusion
In conclusion, it is important to note that the above legal cases about the "ossibility of a
s"ouse to asF for the e:acuation of the other s"ouse of the family housing Gthe case in which the
family housing is common "ro"erty of s"ouses; the case in which the family housing is own "ro"erty
of one s"ouse and the case in which the family housing is held under a lease ( as established by
mandatory provisions which are part of the primary regime, are binding for both the court and for
spouses, without any possibility to ma8e e.ceptions by matrimonial agreement concluded, establishing
a different order of priority. Any contrary clause should be considered unwritten, not producing legal
effects.
1elective &i&lio'ra-hy
.reaties, courses and "ono'ra-hies
?., Avram. &., *icolescu. 9$0!05, )egimuri matrimoniale ?,atrimonial )egimes@! Aamangiu
;ublishing Aouse, Bucharest.
A., Bacaci. Niorica(&laudia, 1umitrache. &risitina, &odruOa, Aageanu. 9$00"5, 're"tul familiei
?*amily Law@! >
th
edition, &.A. Bec8 ;ublishing Aouse, Bucharest.
A., Al., Banciu. 9$0!!5,)a"orturile "atrimoniale dintre so<i ?/atrimonial )elations between 9"ouses@!
Aamangiu ;ublishing Aouse.
N., ?., &iobanu. #ratat teoretic Ci "ractic de "rocedur> ci:il> ?#heoretical and /ractical #reaty of
0i:il /rocedure@! vol. II, *aOional ;ublishing Aouse, Bucharest,!""#.
&osma, 1oru. 9!"##5, 0ontractul de =nchiriere a locuin<ei ?Housing Lease@! CtiinOificD Pi
:nciclopedicD ;ublishing Aouse, Bucharest.
1ariescu, *., &.. 1ariescu, &. ;etraru, A., R.. 9$00"5, 're"tul familiei! :dition =umen, Iasi.
%r., 1ea8. 9!""#5,0ontractul de =nchirie a locuin<ei ?Housing Lease@! Actami ;ublishing Aouse,
Bucharest.
*., &., 1ariescu. 9$0035,)a"orturile "atrimoniale dintre so<i =n dre"tul interna<ional "ri:at
?/atrimonial )elations between 9"ouses in /ri:ate (nternational Law@! &.A. Bec8 ;ublishing Aouse,
Bucharest.
:., %lorian. 9$0!05,'re"tul familiei ?*amily Law@! '
rd
edition, &.A. Bec8 ;ublishing Aouse,
Bucharest.
I., ;., %ilipescu. A., I., %ilipescu. 9$00>5, .#ratat de dre"tul familiei ?*amily Law #reaty@! 3
th
edition,
&.A. Bec8 ;ublishing Aouse, Bucharest.
!!
Artcle
-, BeligrDdeanu. )egimul ;uridic actual al atribuirii locuin<ei comune a so<ilor =n cazul "ronun<>rii
di:or<ului ?0urrent legal regime of common housing allocation in case of di:orce in E1reptulF
maga+ine, Gear IH, '
rd
series, *o. 2!""3, Bucharest.
%r., 1ea8. -t., &Drpenaru. 're"t ci:il ?0i:il Law@! ).I.B., !"3'.
&., )uruiau. 'es"re "osibilitatea e:acu>rii din domiciliul comun al so<ului =n caz de :iolen<>
eDercitat> asu"ra so<iei ?+bout the "ossibility of e:acuation from the common domicile of the s"ouse
in case of :iolence eDerted on the wife, in 1reptul maga+ine no. !$!""$.
Le'islation
=aw nr. $3# from <uly the !#
th
$00" regarding the &ivil &ode published in the Official Ga+ette, no.2!!
on <uly $4
th
$00" with amendments by the Law on the im"lementation of the 0i:il 0ode, published in
the Official Ga+ette of Romania, ;art I, no. 40" of <une !0, $0!!.
%amily &ode :ntered into force on %ebruary !, !"24 with subse/uent amendments.
Law no. 114/1996, Government Ordinance no. 40!""# published in the Official Ga+ette, ;art I, no.
!24 of <uly
1ecree no. '2" of 1ecember 4, !"43 4 $5 for the establishment! organization and o"eration of the
)ental 1ffice by 1ecree no. '> of %ebruary !', !"20 and repealed by 1ecree no. "$ of April !", !"20
for the nationalization of "ro"erty.
1ecree no. "$ of !" April !"20 for the nationalization of certain buildings

published in Official
Ga+ette no. '> of April $0, !"20.
1ecree no. #3!"2$ on the standardization! distribution and use of housing and settlement of
relationshi"s between owners and tenants

published in Official Ga+ette no. !# of April 2, !"2$ and
amended by 1ecree no. >$ of ?arch $0, !"2".
Government :mergency Ordinance no. 40!""# for the amendment of Housing Law no. 114/1996
;ublished in the Official Ga+ette of Romania, ;art I, no. !24 of <uly !4, !""#.
Government :mergency Ordinance no. 40!""# for the amendment of Housing Law no. 114/1996
published in the Official Ga+ette of Romania, ;art I, no. !24 of <uly !4, !""#.
=aw no. !">!""# published in the Official Ga+ette of Romania, ;art I, no. '"' of 1ecember '!,!""#.
Government :mergency Ordinance no. 40!""# published in the Official Ga+ette of Romania, ;art I,
no. ''! of *ovember $>, !""#.
!$