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Skip to main content. Log In Sign Up. Romeo-Victor Ionescu Romania Ph. Therefore, the gidul of the marital agreement will result in a patrimonial state of community or separation or mixed between spouses. There may be situations, however, when the effects of the marital agreement are different.
An example would be the effects of a marital agreement by which a conventional matrimonial regime is not established, when spouses decide to apply the legal matrimonial regime, whose effects will actually occur under the law, but which includes a preciput clause, whose implementation will take place at the death of one spouse. What we emphasize is that in addition to the specific and essential effects of the matrimonial agreement, these agreements also produce other types of consequences.
Thus, first of all, the matrimonial agreement produces effects juristtului probation, because of the publicity formalities it assumes, being used as evidence of the matrimonial regime applicable to spouses or of the other instruments that it may include.
Secondly, the legal documents included 2102 the matrimonial agreement produces only their specific effects, and certain clauses such as: Other legal documents contained in the matrimonial agreement donations, assignment clauses will produce the effects specific to common law. I – 1. The extent in time of the matrimonial agreement specific effects The temporal effects of the matrimonial agreement coincide with the extent in time of the matrimonial regime. Also, according to art.
The non-observance of the publicity formalities causes spouses to be considered in relation to third parties in good faith, as married under the matrimonial legal community regime. Likewise, according to art. During marriage, the matrimonial regime can be modified under the law” paragraph 2. From the mentioned texts it results that one needs to distinguish between the effects of matrimonial agreement the matrimonial regime between jurristului and the effects on third parties.
The matrimonial agreement concluded before marriage will produce legal effects between spouses after the contracting of marriage and to third parties from the date the publicity formalities prescribed by law are met.
The matrimonial agreement concluded during the marriage takes legal effect from the date of the conclusion of the agreement. I – the separation in fact of the spouses under the law or from the date of cancellation or acknowledgment of the nullity of marriage or at the date of the termination of marriage by the death of a spouse or at the date the court decision by which the legal change of the matrimonial regime has been ordered is declared irrevocable.
This is not the moment when the effects of the marital agreement will cease, they will still remain in effect until the end of the liquidation of the applied regime applied. Also, some provisions that represent other legal acts included in it which may produce its effects independently of the marital regime applied will also remain in force.
To third parties, the period when the effects of the matrimonial agreement are produced is conditioned by the date when the forms of publicity provided by law are achieved or when third parties have met it otherwise; ideally these data should coincide, ghiduo that there would be no periods in which the matrimonial agreement apply between spouses; the result consists in applying between spouses of a ghidlu matrimonial regime and against third parties of the legal matrimonial regime.
However, the Romanian legislator in the new Civil Code, found a solution so that the same conventional matrimonial regime stays effective at the same time, both in relation to the parties and against third parties, where third parties have known this regime otherwise 1.
Ghidul juristului 2012 pdf
F F As a result of the termination of the matrimonial regime, it will logically go into liquidation. The rules to be applied are the conventional ones, established by the parties through their marital agreement, for example, through the preciput clause and if the 1 P.
General Part2nd edition revised, Universul Juridic, Bucuresti,p. Critical ConsiderationsCoordonator M.
Comentarii The New Civil Code. Comments3rd edition revised, Universul Juridic, Bucuresti,p. I – spouses have forgotten to stipulate such clauses the common law will be applied. The effects of the matrimonial regime change 2. The effects of the matrimonial regime conventional change Between spouses, the change takes effect, in principle, from the date of the conclusion of the matrimonial agreement in authentic notarized form. In relation to third parties, the effects are produced from the date the publicity formalities are met.
Depending on the length or extent of the changes, the result may be a replacement of the matrimonial regime by another or a modification of ghidjl existing regime. Thus, spouses may opt for a complete change of the matrimonial regime, for example, they can pass from the community regime to the separation of property regime, or vice versa. In this case, the abandonment of a matrimonial regime in favor of another involves the termination and, where appropriate, the liquidation of the previous matrimonial regime.
For example, when passing from the community regime to the separation of property regime, the cessation of the community property regime will guidul followed by its liquidation, in particular by the division of joint property, but without requiring spouses to make the division along with the change of the matrimonial regime or in a certain period from the date of change.
In this regard, it should be noted that not the changing itself of the matrimonial regime may affect creditors, but the possible fraudulent iuristului of joint property, by which, for example, the spouses agree that certain assets should be awarded to one of the spouses to fraud on the creditors ghicul the other spouse, by reducing the general lien of unsecured creditors.
In case of passing from a regime of separation of property to a community regime, we usually do not deal with such complicated issues related to the liquidation of the matrimonial regime, although the existence of assets under co-ownership that may be subject to inheritance is not excluded within separation. All the more so, if the gnidul regime is maintained, and only the scope of the community changes – as a restriction or extension – the liquidation of the kuristului regime is not necessary.
On the other hand, spouses may opt for a partial change of the matrimonial regime, meaning that they may change only the regime of one or certain assets ghhidul the rules relating to property management or those regarding the liquidation of the matrimonial regime, according to art. One of the most gjidul issues is to determine whether the donations made by matrimonial agreement are prejudiced by the subsequent change of the matrimonial regime.
In this respect there are two hypotheses: In general, it may ghixul said that these donations are ghieul ipso facto affected by the change of the matrimonial regime, requiring a special provision in the modifying agreement. These are not revocable by changing the matrimonial regime 2.
F F Even more questionable is the validity of clauses by which the third party maintains the donation provided that spouses do not modify the matrimonial regime. Les regimes matrimoniaux, Presses Universitaries de Grenoble,p.
I – replaced by spouses with another. For example, the donation was made to the woman, considering that the original matrimonial regime was that of the separation of property, and as the wife is a homemaker, in the event of the dissolution of marriage she would be left with nothing. If later on, the spouses pass to a community regime, which allows women, by way of division of common property, to obtain a part of the property acquired during marriage, then we can discuss whether after the modification of the regime longer the maintaining of the donation is still justified, given the mobile of this donation.
The legal modification of the community of property regime 2. Conditions needed for the matrimonial regime have to be legally modified 3 F According to art. In this way, the possibility of a legal change of the community regime at the request of either spouse is set to rights, consisting of a separation of property regime, which will be based on the court decision. The concept of “family property” is a factual one whose content is determined by the court on a case basis.
The court must establish the existence of a causal link between the acts committed by a spouse and “the state of danger” that such acts generate. According to paragraph 2 of art. I – establishment of the separation of property regime is preceded by the liquidation of the community property regime. By this, the judicial amendment of the community of property is different from the simple legal division of property during marriage, which according to art. According to paragraph 3 of art.
This means that they will proceed to draw up the inventory of the movable assets, which is subject to the publicity formalities of the marriage agreements. But the text does not say weather, by the same court decision, the court takes record of the movable property inventory, or weather the movable property inventory will be drawn separately by the notary public, at the request of the spouses.
Obviously the simplest solution would be, by court order, for the court to record the inventory. The effects of the legal change of the community of property 4F a. The effects that occur as a result of the legal change of the community of property between spouses According to art. Between spouses, the separation effects occur after the date of the request, except when the court, at the request of any of them, orders that the effects apply from the date of the separation in fact” paragraph 2.
The measure of transition to the separation of property is permanent, the spouses having no opportunity to request a subsequent amendment of the court action. I – In this context, the question whether spouses may subsequently change this regime in a conventional way, for example, in order to re-establish the community of property arises. It seems that there is no legal impediment as art. The effects that occur as a result of the legal change of the community of property by spouses in relation to third parties First of all, we mention that according to art.
Indeed, the right to require the separation of property is a personal right of spouses, given the nature of the reasons that can justify it family interests. Secondly, for opposability to third parties, paragraph 3 of art. One can also draw up an inventory for movable property acquired during the separation of property paragraph 2. In all cases, for the opposability to third parties the inventory is attached to the matrimonial agreement, being subject to the same publicity formalities as the matrimonial agreement paragraph 3.
In the absence of the inventory, it is presumed, until proven otherwise, that the right of exclusive ownership belongs to the owner spouse paragraph 4. Also, the separation of property established by court order cannot be opposed to third parties in relation to any acts concluded with either spouse before marriage amendment judicial system. Thirdly, according to art. Also, they can, by way of exception, always rely on the inopposability of the community property regime liquidation, if they prove that the change or judicial liquidation of the matrimonial regime was made in fraud of their interests.
Manual pentru uzul formatorilor S.
Conferinta | NADIA CERASELA ANITEI –
Filipescu, Tratat de dreptul familiei, ed. Emese Florian, Dreptul familiei, ed. I – Paul Vasilescu, Regimuri matrimoniale.
Paul Vasilescu, Regimuri matrimoniale. Laws Codul civil — Legea nr. Its main objective is to offer parties to both civil and professional relations, as well as courts of justice and arbitral tribunals, means to determine the law applicable to contracts concluded between parties from European Union member states.
Rome I Regulation has a decisive role in regulating conflicts of laws and identifying the same applicable law, irrespective of the nature of the contract, the origin of the parties juistului the courts of law where the litigation is being ghiduo out.
The present study is dedicated to identifying and analyzing the principles set forth by Rome I Regulation, regarding the law applicable to contractual obligations, which may be categorized as follows: I – I. Libertatea de alegere a legii aplicabile. Astfel, potrivit prevederilor art. I – 2. Din punctul de vedere al structurii normei conflictuale cuprinse la art.
Beneficiarul francizei este F F francizatul franchisee Din analiza normei conflictuale de la jhristului. Conform normei conflictuale de la art.
Astfel, determinarea legii aplicabile contractelor mixte se face pe baza centrului lor de greutate. Xp. The last one was created under ghidyl fictitious image of the world, according to which all humans are equal, not only in their rights but also in their economic power.
Therefore, the legislator granted the parties the right to negotiate their contracts, considering that nobody else knows better their interests.