3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
Spouses may choose between the statutory community of property regime, the conventional community of property regime and the separation of property regime. In a conventional community of property regime, the spouses may extend or restrict the scope of the common property, regulate the modalities of a possible future division of the common property or provide that for certain acts of administration the consent of both spouses shall be necessary. If they provide for a separation of property regime, each spouse will retain the property he/she owned before the marriage and will become the sole owner of the assets he/she individually acquires during the marriage. However, spouses may not depart from the primary regime regulated under Articles 313 to 328 of the Civil Code, irrespective of the matrimonial property regime they choose.
3.2. What are the formal requirements and who should I contact?
The marriage contract by which another regime than the statutory community of property regime is chosen has to be authenticated by a civil law notary, otherwise it will be subject to absolute nullity.
3.3. When may the contract be concluded and when does it come into effect?
A marriage contract may be concluded before marriage, in which case it will produce its effects only as of the date the marriage is celebrated. The marriage contract may also be concluded during marriage, in which case it produces its effects as of the date of its actual conclusion (Art. 330 of the Civil Code).
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
In accordance with Article 369 of the Civil Code, if the marriage was concluded at least one year before, the spouses may replace, whenever they want, the existing matrimonial property regime with another regime or modify the existing regime, in line with the substantive and formal conditions provided by law for the conclusion of marriage contracts.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
In Romania, the choice of a matrimonial property regime, other than the one of legal community, is made by concluding a matrimonial convention. In principle, the matrimonial convention may be drawn up before the conclusion of the marriage or even on the day the marriage is concluded, but also during the marriage. The spouses may replace the existing matrimonial property regime with another matrimonial property regime or amend it, in compliance with the conditions laid down by law concerning the conclusion of matrimonial agreements, if at least one year has passed since the marriage was concluded.
Concerning the date from which a matrimonial convention concluded between the spouses during the marriage takes effect, it shall be laid down by the parties in the concerned document or, in absence, the date on which the convention was concluded. The matrimonial convention shall be registered in the National Notarial Register of matrimonial regimes (R.N.N.R.M.), only after the conclusion of the marriage.
