The legal regime of the matrimonial contract

In order to perform an analysis of the marital property systems in the current

legislation of the Republic of Moldova, we first need some clarifications regarding the
matrimonial regime in general. Thus, for a better understanding of this legal institution, we
have to first answer the following questions: what do we assume by matrimonial regime and
what is the link between a matrimonial regime and the patrimonial relations between
spouses.
The thesis "Legal Regime of the marriage contract" addresses the issue of legal
regimes applicable to the property acquired by spouses during marriage. As already known,
the matrimonial regimes can be classified according to more criteria. Thus, classified by
their source, the matrimonial regimes can be legal or conventional (based on matrimonial
conventions). By their structure, we have separation matrimonial regimes (the regime of
property separation and dotal regime) and community regimes (the regime of universal
community, the regime of partial community, the regime of marital property etc). From the
perspective of being modified or not during the marriage, both legal and conventional
regimes can be split into modifiable and immutable regimes. The necessity of a scientific
research on matrimonial regimes comes from the fact that the legal deeds and acts on which
the matrimonial regime is based are usually very complex.
The subject of the doctoral thesis The legal regime of the matrimonial contract is
considered to be actual from both theoretic and practical point of view, as it researches the
application methods of signing, modifying and terminating matrimonial contracts, as well as
the liability that can arise in case of not informing the creditors of the spouses about the
existence of such conventions.
The necessity of a research in this domain is also imposed by the fact that in Moldova
the numer of divorces is rather high. For example in 2013 were registered 3 divorces at 1000
of inhabitants, while in the states of the European Union the medium number of divorces at
1000 inhabitants is 2. Moldova was even ranked the fifth country in the world in a divorce
rate top.
Tha fact that EU integration is part of our current governments plans and also an
aspiration for the majority of moldovan population, confirms the necessity of serious studies
in the field, since in EU the divorce rate is lower but the legal reglementation is more
advanced and detailed.

The purpose of this research is to make an extensive scientific investigation of the

matrimonial contract institution.
The scientific reasearch aims to achieve the following objectives:
- to research and generalize the national and european doctrine in the field of
patrimonial relations between spouses in general and of the matrimonial cintract in
particular;
-

to research the institution of the matrimonial contract in terms of patrimonial relations

between spouses;
-

to review the matrimonial regimes by their structure (the regime of property

separation and dotal regime) and community regimes (the regime of universal
community, the regime of partial community, the regime of marital property);
- to analyze the subjects of the matrimonial contracts;
- to analyze how matrimonial contracts are modified, terminated, ceased or declared
null;
- to analyze statistical data about the number of requests for matrimonial contract
authentification registered till now;
- to analyze the matrimonial contract institution in the states with a well defined
tradition in the field, in order to make de lege ferenda proposals etc.
The content of the thesis "Legal Regime of the marriage contract" will thus present a
multiaspectual and innovative analysis of the matrimonial contract institution, including
important and applicable elements from both theoretical and practical points of view.
The matrimonial contract. Most of our citizens have heard about that only in
occidental movies or when reading about some stars life. For most of us the matrimonial
contract is something strange and far from a simple moldovans reality.
It is true that most of the people can not understand how the relationships between
spouses can be included in a contract. It is even more difficult to imagine that this contract
will include points that will make the subject of discussion in case the spouses will be in the
situation to confront a divorce. And indeed, it is quite difficult for a couple in love to think
about divorce in the moments when their dream is to become husband and wife.
Nevertheless, the existence of matrimonial contracts in the Republic of Moldova is
now a reality. In 2001 in Moldova came into force the new Family Code that regulates all
questions concerning the matrimonial contract. That is why we will try to clarify the
following topics: What is a matrimonial contract? Which are the origins and the legal aspects
that govern this institution? Why do we need it and which are its effects? Is it indeed as
horrible as considered by some people?

We will also try to perform an analisys of the contractual regime of the spouses
property in the actual legislation of the Republic of Moldova. In the same time, some
precisements concerning the matrimonial regime in general are to be done from the very
beginning.
The marriage produces both private non-matrimonial and patrimonial effects and they
may not be governed by the same legal rules. And that because the private relations between
spouses, having a specific content, with no money value, have their specific legal regime
and are governed by the civil or family law. The patrimonial relations are monetarily
evaluable and also have a specific reglementation in both family and civil law. From here the
conclusion that the matrimonial regime can not be applied to all marriage effects. Also,
according to the specialists in the field, the marriage institution would imply the use of two
regimes: a patrimonial one and a matrimonial one, as ethimologically the term of
matrimonial would refer to the extrapatrimonial relations between spouses. In practice, in
the legal literature by matrimonial regime" are meant the rules governing the patrimonial
marriage effects. [1p.17]
In doctrine, the matrimonial regimes are classified according to more criteria. [2p.7]
Thus, classified by their source, the matrimonial regimes can be legal or conventional (based
on matrimonial conventions). By their structure, we have separation matrimonial regimes
(the regime of property separation and dotal regime) and community regimes (the regime of
universal community, the regime of partial community, the regime of marital property etc).
From the perspective of being modified or not during the marriage, both legal and
conventional regimes can be split into modifiable and immutable regimes etc. [3p.114]
The protection of property rights, in the family relations including, was the subject of
interest from the oldest times. The problems of illegal and unfair actions of a bad-faith
husband, avoiding the unpleasant situation of founding a family with an immoral person who
considers marriage a form of getting richer, have tormented the mankind for centuries,
continuing to be an actual issue in the majority of countries of the world.
The matrimonial convention, which in the professional literature is also called
matrimonial contract, marriage contract, prenuptial agreement or marriage
convention, has as essence the reglementation of the patrimonial relations between
spouses.
The Family Code of 2001 defines in Chapter 6, Article 27 the matrimonial contract as
"a voluntary agreement concluded between persons who wish to marry or between spouses,
which determines the rights and obligations of their property during the marriage and/or in
case of its dissolution". In proffessional literature the concept of matrimonial convention was
the subject of extensive discussions. Thus, a first accepted meaning of the matrimonial
convention was as a legal act through which parties regulate their essential patrimonial
relations which will take place between them during the marriage" [4 p.4].

In a different acception, the matrimonial contract represents the conventional act by

which the future spouses, making use of the freedom conferred by the legislature, establish
their own matrimonial regime or change during the marriage the matrimonial regime under
under which theyve married [2]. This definition can be regarded as complex for
characterizing the matrimonial convention both as a legal way for future spouses to choose
their matrimonial regime applicable during all the marriage period the marriage and the act
by which the spouses can change the chosen matrimonial regime during the marriage.
Other theorists have characterized the matrimonial convention as "the convention
accepted by the future spouses as governing rule for their matrimonial regime and the
conditions of present future goods in the pecuniary relationships that result from marriage"
or "faculty granted by law to conventionally regulate within certain specified powers and the
property consequences of disability resulting from marriage regarded as civil state report
(M.B. Cantacuzino) [5 p.123]..
From the abovementioned we can conclude that a matrimonial convention is an
ordinary civil agreement, to which are applied the general rules of conclusion or fulfillment
of obligations , with some specific features as for example:
- subjects of this contract can only be spouses (people who have married in the
terms and registered provided by law ) or future spouses (those who have made a
declaration of marriage at the registry office or local authority);
- only individuals, not legal bodies , may enter into such an act;
- through this act are established the economic relations between the spouses or the
rights and obligations of spouses in case of divorce.
It is important to note that a matrimonial convention and the process of its conclusion
does not represent a sign of distrust between spouses. Moreover, a convention drawn up in a
professional way contributes to the sustainability of marriage for dismissing the first cause
of divorce: quarrels about revenues of each spouse, marriage costs and assets acquired
during the marriage .
To get a broader view of matrimonial agreement, we should find out its historical
origins and the evolution over time.
What is known today as the matrimonial convention is not a new brand notion,
neither legally nor culturally. It appeared many centuries ago and was seen as a necessity for
women who wanted an assurance that they would be guaranteed basic economic rights
preservation in case of divorce or death of the spouse.
People started to enter into matrimonial conventions housands of years ago.
Researchers say that the tradition of matrimonial conventions comes from the ancient
Egyptians and that prenuptial arrangements existed for centuries in Anglo-American
traditions. In the past, the parents of the bride and of the groom used to negotiate the contract
for the benefit of the new couple.

Marriage contracts were registered for the first time in the Late Period of ancient
Egypt (661-332 BC) and were used by the first century BC. The contracts signed on
marriage day were actually property contracts. Often they were initiated by the husband to
determine the maintenance rights and possessions of both parties.
In the higher social classes the prenuptial contract was usually signed between the
father of the bride and the future husband and specified the rights and duties of both parties
during marriage, as well as in case of divorce. Sometimes, due to the insistence of the fatherin-law it even specified the quantity of food and clothing that the husband was obliged to
provide his wife every year. The British Museum preserved one of those acts that contains:
- The date (year of the reign of which king);
- The contractors (future husband and wife);
- The name of the parents;
- The profession of the husband (wife is rarely mentioned);
- The scribe who drew up the contract;
- The name of the witnesses.
This copy is written on papyrus in demotic writing . In the contract, the husband
undertakes to pay his wife a certain amount of money within thirty days, in case of divorce.
The woman could also benefit from one-third of common property or even more. Most
contracts stipulated that all children dorn during the marriage became heirs of the man.
On the opposite side of the papyrus there is a list of 8 witnesses who attended the
signing of the convention. Once the contract signed, it was given to a third party for
safekeeping or it was kept in the local temple [6].
In Ancient Rome, matrimonial conventions (lat. Tabulae nuptiales) were not
mandatory for marriage, but such contracts were often concluded as they regulated the
situations related to dowry and the formalities of its return in case of divorce. During the
wedding, the contract was read aloud, after which 10 witnesses put their stamp on it.[6]
In France, before the sixteenth century there were only legal regimes: community
regimes in northern regions and the dotal regime in the southern regions. In the late sixteenth
century and early seventeenth century appears the tendency to believe that the legal regimes
are not mandatory or prohibitive, but there is a possibility to depart from them by private
agreement. Thus these conventions become more and more frequentand and later will be
integrated in the modern law. Specific to this period is the fact that the contracts were a habit
of bourgeois marriage. Only people with modest incomes married without a matrimonial
contract. In the French bourgeois families the life partner was chosen with the help of friends
and relatives. During the engagement the two families discussed the conditions and the
amount of dowry, setting in the same time a date for the matrimonial agreement (contrat de
mariage). On that day, the couple, together with some close relatives and friends, went to the
notary. While the clerk was reading the matrimonial contract, the spouses tried to show
indifference to its provisions because it was considered indecent to show more concern for
money than for love. After the contract was read, the fiancs signed the Convention. The

contract was co-signed by the parents and the witnesses. If the parents wanted to honor an
important person they knew, he was also invited to sign the contract. [6]
We could continue with examples of contracts from Hebrew law, from the legislation
of the Russian Empire and the common law legal system. Matrimonial conventions were
known in our law in Article 1616 of the old Calimach code. We could observe that the
tradition of matrimonial conventions conclusion was preserved and transmitted from one
generation to another, from one nation to another. The survival of this institution shows the
importance and the impact that had the agreement between spouses concerning their
economic relations and it will continue to be applied as long as it will be considered actual.
[1p.16].
The Matrimonial Convention is a variety of the civil contract, which also covers a
number of specific elements. For these reasons, to the basic ideas underpinning a
convention, we will add the rules specific to the matrimonial contract. Thus, the principles
governing the conclusion of a matrimonial agreement are:
- The freedom of matrimonial conventions and
- The principle of auxiliarity.
The freedom of the matrimonial conventions has legal origins, so most of the law
systems enshrine this principle. In fact, it means that spouses may enter in their matrimonial
contract other provisions than those imposed by the legal matrimonial law.
Referring to the content of matrimonial convention freedom, we must emphasize that
the parties have in principle complete freedom for fixing their matrimonial convention,
except for form, which due to its solemn nature, is strictly determined by the legislation.
According to article of the Family Code of the Republic of Moldova:
(1) The spouses may change by a matrimonial contract the legal status of joint
property ownership established in Article 20.
(2) The matrimonial contract may state that all property acquired by a spouse during
marriage is personal property of the spouse who has acquired it.
(3) The matrimonial contract concluded during marriage has no retroactive action. Assets
acquired before the conclusion of the matrimonial contract are subject of the legal regime
prescribed by this Code.
(4) Spouses are entitled to include in the matrimonial contract the mutual rights and
obligations regarding the maintenance and methods of participation of each spouse to the
income obtained by each of them and the joint expenses, the goods that each spouse will
receive in case of separation, and to establish other patrimonial clauses, including economic
sanctions for the spouse guilty of divorce.
(5) The rights and obligations stipulated in the matrimonial contract may be limited to a
certain period or may be made dependent on special conditions occurrence.
(6) The parties are not entitled to stipulate in the matrimonial contract any clause that
would affect the legal capacity or exercise of the spouses, their right to address the court to

regulate personal relationships between them, including the rights and obligations between
them and their children; which would limit the right to maintenance of the husband unable to
work, which would harm the rights and legal interests of spouses or of one of them, and any
other clause that is contrary to the principles and nature of familial relationships.
The principle of auxiliarity is characterized by the fact that the institution of the
matrimonial contract will be the subject of an inevitable parallelism with the marriage itself,
from which it will borrow many content and procedural conditions, within the limits of
certain adjustments to the patrimonial nature of its object.
The presence of marriage as main contract determines the existence and the duration of
the matrimonial convention marriage as auxiliary agreement (and nuptiae sequantur). The
matrimonial agreement will have no legal value if the marriage will not be registered by the
competent authorities as required by law. As an accessory to the marriage act, the
matrimonial agreement will take effect only on the duration of the marriage, ie as long as the
parties are married.
Consequently, the matrimonial convention will not take effect before marriage or after
the termination or dissolution of marriage, except for the situations when the Convention
includes details concerning the spouses rights and obligations in case of divorce.
From the indissoluble relation between the marriage and the matrimonial agreement a
number of consequences occur:
- The vices of consent to marriage will indirectly affect the matrimonial convention;
- If the marriage is not celebrated or is canceled, the matrimonial convention will
become obsolete and will not take effect;
- However, if the Convention is affected by vitiated consent, this will not affect the
marriage, having as a result only the nullity of the matrimonial contract (the
spouses will still be considered legally married).
Here are the legal characters of this contract:
a it is reciprocal as it is concluded between two people, in this case between husband and
wife or future spouses, issuing rights and obligations of both parties.
b it is solemn, as it must always be presented in written form, attested by notary and unless
ad validitatem form is respected, the contract will be considered as null;
c it is onerous as it is governing the economic relations between spouses, character
resulting from the provisions of Article 27 of the Family Code. In the same time, the
Article 29, paragraph 1 of the Family Code provides that: "By the matrimonial contract,
the spouses may change the legal status of joint property ownership established in
Article 20";

d it is commutative, as both parties know the existence and the extent of the benefits
payable to each other in time of conclusion of the contract;
e it is constitutive of rights as it creates a new legal situation between the parties,
previously unknown for them;
f

it is a nominative contract and is governed by the Family Code;

g it is a negociated contract as both parties are expected to negotiate and discuss its
clauses
h it is a contract that can be affected by form (terms or conditions) [1p.211-212].
The ultimate goal pursued by the parties at the conclusion of a matrimonial agreement is
that it should produce preset effects. In this regard it should be noted that the effects of a
matrimonial convention will be the same as the ones of the chosen matrimonial regime,
which can be a community regime, separation regime or a mixed one. It is also important to
mention that the beginning of these effects will coincide with the marriage itself (because of
its auxiliarity, and nuptiae sequantur). If the matrimonial convention can be changed during
marriage (we refer to flexible regimes), its effects will occur as from the operation of the
amendments. In this context the Article nr. 30 of the Family Code has a provision stating that
the matrimonial contract can be modified or stopped at any moment based on consent of
both spouses. The greement concerning the amendment or termination of the matrimonial
contract will be presented in written form legalized by a notary.

To sum up, we can say that the matrimonial convention concluded by the spouses
brings stability in their patrimonial relations, as it brings under regulation the delicate
aspects of material nature, so both during the marriage and in case of divorce, every
spouse will have a good understanding of the economic rights and obligations, that is is
beneficial in terms of avoiding quarrels related to to the nature of goods and facilitate the
long partition procedures.
Our aim though is not to present a wrong point of view by recommending the
matrimonial contract as mandatory for everybody or as the best solution for each family.
This research tries to ojectively present the reality by bringing examples of positive
impact of the matrimonial contract but leaves everyone the freedom to choose if this
institution is applicable to his own needs.
However, the spouses will to regulate their patrimonial relations has no legal value
one if the law is inflexible and does not allow it. Therefore the legislature plays a major

role in the reviewed structure by providing the parties with the necessary tools in case
the use of these possibilities is considered appropriate. Pace of economic and social
changes occurring in the arena of European law and the case-law requires changes to
national legislation in this area.
The European Law and jurisprudence domain is evolving both socially and
economically and in order to answer the current needs, some changes to the national
legislation in this area are also expected.

BIBLIOGRAFIE

[1] P.Vasilescu, REGIMURI MATRIMONIALE. PARTE GENERAL, Editura Rosetti, Bucureti,

2003, p.16- 19.
[2] C.M.Crciunescu, REGIMURI MATRIMONIALE, Editura ALL BECK, Bucureti, 2000, p.6- 8.
[3] I.Albu, DREPTUL FAMILIEI, Editura didactic i pedagogic, Bucureti, 1975, p.114.
[4] C. Hamangiu, Al. Bicoianu, Blnescu Rosetti. TRATAT DE DREPT CIVIL ROMN. Vol.3,
Editura ALL Educational S.A., Bucureti 1998, p.4

[5].V. Cebotari DREPTUL FAMILIEI, Tipografia

compl.,Chiinu, 2014 p. 123

[6] legeaz.net/.../conventie-matrimoniala-drept-con...

Reclama, Ed. A 3-a, rev i