The Civil Code of 1865 (with a strong Napoleonic influence) remains one of the most important pieces of legislation that governs private life in Romania (Dumănescu 2012). The (socialist) Family Code of 1954 modified only several chapters of the previous code, but these differences were important: the patriarchal position of the husband was replaced with full equality between wife and husband, and marriages were to be based on free consent (and without family consent). Thus, family relations were democratised. The protection granted by the state to marriage and the family would be used as the point of departure for various interventionist measures in the private life of the family.
Under current Romanian law (Civil Code 2011), a marriage is valid and socially recognised only if two categories of conditions are met: substantive and formal. The substantive issues are the mutual consent of the partners, their ages, and their health status.
In Romania, cohabitation (or a free union) means that a man and a woman live together for a period of time. As a social reality, the cohabitation is not considered illicit. Romanian law does not forbid cohabitation, but it does not provide cohabiting couples with the same protections as married couples.
Same-sex unions are not recognised in Romania, even if the union was legally registered in another country that permits same-sex marriage.
The constitution of 1948 stated that the country belongs "to the people" (poporului), while the constitution of 1952 opened with the words that the country belong to the "working people" ("... un stat al oamenilor muncii"). Except for health care benefits, which were universal (provided through a national health system), all other social benefits were connected to employment status (e.g., housing, pensions, family allowances, and maternity benefits). After 1950, family policies were strongly influenced by the Soviet approach to maternity: i.e., they were based on the assumption that the main function of the family is to add to the population. The rewards for "hero mothers" (1951) were mostly symbolic, and until 1966 there were few cash transfers to families. Instead, the emphasis was on the duty of women to have children. The two major pillars of family policy were cash transfers (developed in the later decades) and childcare services (Inglot, Szikra, Rat 2011).
The family policies changed after 1966 with the introduction of brutal pro-natalist measures: the prohibition of abortion, a celibacy tax, penalties for childless couples, and disincentives for divorce. After 1990 these measures were abruptly abandoned and were replaced with new measures, including entitlement to childcare leave. In 1993 the child allowance became the only universal benefit, while most of the other family benefits were means-tested. While the scope of benefits for families increased up to 2010, the economic downturn meant that some of these measures (such as those providing supplies and allowances for new-borns) had to be scaled back, while others had to be restructured. In addition, the eligibility criteria for receiving allowances were tightened, Thus, in addition to providing proof of school attendance, families have to prove they are paying local taxes.
Currently, family allowances in Romania are non-contributory financial benefits funded by the state budget.
After 1950 crèches and kindergartens became the main preschool institutions in Romania. The intention of lawmakers in providing these institutions was clear: "to ease mothers’ participation in the workforce and in social and cultural life". Crèches were particularly important since there was no childcare leave for parents, and they were part of the health care system. Kindergartens were part of the educational system for children ages three years and older. Children were divided in three age groups, and there were short or full (and also daily or weekly) programmes. Some of the pre-school institutions were organised by employers for staff, while the rest were managed by local councils or agricultural cooperatives (the equivalent of Soviet kolhoz). Crèches and kindergartens were subsidised by the government: the normal programme was free (from 1966 onwards) but the parents had to pay fees for enrolling their children in the full programme (daily or weekly). In crèches, young children (from two months to three years old) were cared for by personnel with medical training, but no educational training. In 1980 there were 902 crèches responsible for 90,000 children.
Crèches were phased out with the introduction of a one-year childcare leave in 1990 and with an increase in the length of leave to two years in 1997: in 2001 there were only 287 institutions responsible for 11,000 children (218 daily, 33 weekly, and 36 mixed institutions). Most of the parents of these children were employed (8% of fathers and 4% of mothers were unemployed). A UNICEF study found that in these institutions 42% of the personnel were carers (with no specific training), 32.5% were nurses, and 0.4% had other qualifications. The biggest concern raised was that the children were not being educated. A high degree of seasonal fluctuation in attendance in crèches was observed: in winter fewer children attended these institutions. The cost for the parents was under one euro per day (data for 2001). In 2001 the oversight of crèches was transferred from the Ministry of Health to the local administration. Starting in 2007, the crèches began providing integrated services: i.e., care, education, and health services.
Kindergartens are attended by children ages three to seven. The share of children attending kindergarten declined in 1990-1995, and then rose steadily (reaching 71.8% for 2004). Kindergartens are part of the educational system, and are overseen by the Ministry of Education and their local representatives. Public kindergarten is free for the normal programme, and small fees are charged for prolonged programmes (up to one euro per day, i.e., the cost of food). There has been a rapid expansion in the number of private kindergartens, but the costs of these facilities are prohibitive for the majority of the population. Statistics show there is a huge discrepancy between rural and urban areas in terms of the availability of kindergarten places.
Parental leave (including maternity protection)
At the beginning of the XXth century, maternity benefits were developed in conjunction with legislation regarding working conditions for women and children (Inglot, Szikra, Rat 2011). In the post-war period, many of the previous regulations on maternity benefits were retained: women were entitled to a short maternity leave (112 days) and low financial compensation (from 50% to 90% of salary). Since the 1990s, a series of laws have increased the length and the financial benefits of maternity leave, while ensuring job security through pregnancy and the leave period.
Unlike in many socialist countries, there was no childcare leave in Romania before 1990. The options which did exist—e.g., working part-time until the seventh birthday of the child or taking medical leave to care for a sick child—were inadequate, and required mothers to undertake complicated and sometimes illegal manoeuvres.
The introduction of childcare leave in January 1990 can be seen as compensation for the lack of leave during the socialist era (it should be noted, for example, that unemployment was legally recognised for the first time in February 1991). The extension of leave to two years in 1997 can be seen as an effort to make motherhood more attractive, but it may have also come in response to other problems, such as the reduction in the number of crèches, the low quality of childcare services, and the increase in unemployment. The modifications introduced in 2011 (a shorter leave of one year with a higher level of financial compensation and a longer leave of two years with a lower level of financial compensation) may be seen as related to incentives for labour force participation introduced in 2010. An analysis of eligibility conditions indicates that a parent would have been required to have had taxable income for six months in the 12 months before a birth in 1990, for 10 months in 2003, and for 12 months in 2005. Thus, Romania came to have one of the strictest definitions of an "working individual". Other measures that have been introduced since 2010—including the total exclusion of nonworking parents from childcare financial benefits and the elimination of (universal) birth grants and supplies for new-borns—suggest that recent laws are intended to reward the "productive population". Limitations on the number of children covered under the law were also imposed: in 1990 the measures were limited to the first four births, while in 2005 they applied to only the first three. In 2012, however, these limitations were eliminated.
Before 1990 family allowances were an important component of social protection in Romania, but they were closely related to the parent’s employee status. After 1950, eligibility was based primarily on the parent’s employment status in the state sector or in cooperatives.
The amount of the family allowance was based on the family’s income per member, area of residence (urban or rural, with higher amounts for the urban areas), and number of children.
In the second half of the 1960s, family policies in Romania were explicitly pro-natalist. Women were not permitted to have an abortion until they had at least four children, family allowances amounts were increased in relation to the number of children, and mothers of three or more children received a monthly allowance for life.
Until 1993, the child allowance was both a right of and a benefit for the family. The recipient was usually the employed husband. Since 1993, eligibility for the child allowance was extended to all children, regardless of the employment status of the parent. Currently, the child allowance is the only universal benefit provided by the Romanian social protection system.
For children between eight and 16 years old, school attendance was a condition for receiving child allowance until 2007, when this restriction was lifted. The child allowance amount is double the usual amount for children with disabilities.
In addition, since 2005, the child allowance amount for children with disabilities has been about five times the usual amount up to ages two or three.
In 1997, all of the socialist-era laws protecting large families were repealed. An allowance for large families was introduced, with universal coverage provided for these beneficiaries. The amount was based only on the number of children. In 2004 the supplementary allowance for large families was replaced with a means-tested support allowance for couples with children and for single-parent families. In both cases the amounts were flattened after the fourth child, and the parents were required to provide proof every three months that their children were attending school. For the first time, the government acknowledged the vulnerable situation of single-parent families and granted them slightly higher benefits.
In December 2006, new forms of in-kind benefits were introduced: an allowance for new-borns and supplies for new-borns. Unlike the allowance for new-borns, which was limited to a mother’s first four children, the supplies were provided for all children.
Since 2009 and the onset of the economic crisis, reform measures have further weakened the redistributive effects of social benefits. A few of the universal benefits, such as the allowance for new-borns and the supplies for new-borns, were eliminated. Similarly, in 2010 allowances for couples with children and support allowances for single-parent families were consolidated into a single benefit called the support allowance. The eligibility threshold for the support allowance was lowered, and the flattened quantum was maintained after the fourth child.
In sum, family allowances in Romania are currently non-contributory financial benefits. The only universal benefit is the child allowance. Support allowances for large families and single-parent families are selective benefits based on means testing.
While the scope of benefits for families increased up to 2010, the economic downturn meant that some of these measures had to be scaled back, while others had to be restructured. In addition, the eligibility criteria for receiving allowances were tightened, Thus, in addition to providing proof of school attendance, families have to prove they are paying local taxes.
Under the provisions of the Family Code (with all of its modifications and amendments), marriage has two meanings. On one hand, it is a legal document confirming the marriage of two future spouses which covers the substantive and formal issues addressed by the law. On the other hand, marriage represents a legal situation which arises following the act of marriage, and which lasts as long as the marriage lasts. The specialised literature adds a third meaning: namely, the legal institution that comprises all the norms that regulate marriage as a legal act concluded by future spouses and the legal situation of the spouses (Florian, 2003:21, Filipescu, 2000:11, Bacaci, Dumitrache, Hageanu, 2005:15).
Without offering a clear definition of marriage, the provisions state that marriage is a union of a man and a woman which they freely conclude in compliance with the legal provisions, and with the aim of creating a family. A marriage is valid and socially recognised only if two categories of conditions are met: substantive and formal. The substantive issues are the mutual consent of the partners, their ages, and their health status. Another formal condition—namely, that of gender difference—is not explicitly mentioned, but is inferred from the regulations concerning family relations, and is thus accepted by the specialised literature (Florian, 2003:35, Filipescu, 2000:17, Bacaci, Dumitrache, Hageanu, 2005:24).
Same-sex unions are not recognised in Romania, even if the union was legally registered in another country that permits same-sex marriage. Since the enactment of the first Family Code (1953), the minimum age of marriage has been 18 years for women and 16 years for men. In exceptional cases, girls have been permitted to marry at age 15 if there are sound reasons for concluding the marriage (for example, pregnancy), and provided there was a medical certificate verifying the girl’s somatic and intellectual maturity. Approval from the local council was also needed. Since 2007, the minimum age of marriage was established at 18 years both for men and women. If there are sound reasons, a minor who is at least 16 years old can get married based on a medical certificate, the consent of his or her parents or legal guardian, consent, and an authorisation of the general directorate for social assistance and child protection from his or her area of residence (since 2011, the authorisation is issued by the tutelary authority).
Marriage is not legally permitted in Romania in the following situations: if one of the spouses is already married (which establishes the principle of monogamy in Romania); if the spouses are closely related (up to the fourth degree of consanguinity) by blood, adoption, tutelage, or affinity; or if one of the spouses is suffering from a mental disorder or a temporary lack of judgement. Noncompliance with the substantive and formal conditions can also nullify the marriage act.
In Romania divorce is the only legal means of ending a marriage, and must be based on solid grounds that severely affect the relations between the spouses, and which make it impossible to continue the marriage.
The old Romanian Civil Code (which was in force from the end of the 19th century up to the 1 October 2011, and was the only code that was not modified under the communist regime) regulated (in line with the model of the French Civil Code) divorce based on solid grounds (e.g., adultery, abuse and violence, severe insults, forced labour punishment, attempt on the other spouse’s life) and no fault. In 1953 a number of legal provisions concerning the family were introduced in the Family Code. After the Family Code went into effect in 1954, Romanian law regarded divorce as a mixed system based on remedy and punishment, and caused by one of the spouses (Bacaci, Dumitrache, Hageanu, 2005:141, Florian, 2003). Until 1993, the court could dissolve a marriage only when there were solid grounds; i.e., when “the relations between spouses are so severely and permanently affected that marriage cannot continue”. The legal provisions concerning divorce were substantially modified in 1993, when no-fault divorce was reintroduced. This meant that the court could dissolve the marriage based on solid grounds which severely affect the relations between the spouses, and which make it impossible to continue the marriage (Florian, 2003).
Divorce as a remedy can be granted when there is an agreement between the parties, but also for medical reasons. This kind of divorce can be granted only to the spouse suffering from an illness. A spouse can file for an at-fault divorce based on proof of fault. The court can grant the divorce based on one party’s fault or on mutual fault.
If the spouses have been separated for five years, either of them can ask for a divorce by taking responsibility for the failure of the marriage.
Only in the case of a no-fault divorce there is no fault discussed.
When ruling on the custody of children or on maintenance payments, the court takes into account the minor child’s interests.
Despite the modifications to the Family Code, the cumulative grounds brought by one spouse were maintained: i.e., the existence of solid grounds that severely affect relations between the spouses, and that make it impossible to continue the marriage.
The grounds for dissolving the marriage are not individually mentioned in Romanian law. They can be of a subjective (e.g., the behaviour of one or both spouses led to a deterioration in family relations) or an objective (not pertaining with one of the spouses; for example, a severe illness that makes it impossible for the marriage to continue) nature. Until 2010 only the court could grant a divorce. The modifications to the Family Code in 2010 and the Civil Code (since 1 October 2011) allow for a divorce to be granted by a registrar or a public notary, or through mediation. If the spouses cannot reach a consensus, the court can, upon request, intervene and resolve the differences. Even if the spouses reach a consensus, the court’s intervention represents a guarantee of legal agreement between spouses.
Cohabitation and civil unions
In Romania, cohabitation (or a free union) means that a man and a woman live together for a period of time. As a social reality, the cohabitation is not considered illicit. Romanian law does not forbid cohabitation, but it does not provide cohabiting couples with the same protections as married couples. The law does not acknowledge any legal effects of cohabitation (Filipescu, 2000:59, Florian, 2003:23).
As in marriage, the goods acquired by the partners during cohabitation are common property which are co-owned in percentage shares, assuming they were acquired while respecting the common law. For cohabiting couples, there is no assumption regarding the community of the partners’ goods and of tacit trust between the partners (Florian, 2003:24).
Children born to cohabiting couples are not subject to the same legal parental provisions as children conceived or born during marriage. But once the father of the child is established (i.e., after the father recognises the child), the child has the same legal situation as the children of a married couple. Child benefits are granted to all children, regardless of their legal situation.
Under present law, cohabiting partners cannot adopt a child together.
The legal literature in this area, especially after 1990, has noted the delicacy of the issues this social reality (cohabitation) raises. In recognition of this reality, some social protection laws have allowed families based on consensual unions and cohabitation to access some social benefits (for example, social aid or the family allowance). Moreover, to help protect cohabiting partners from domestic violence, some provisions related to cohabitation were introduced to the Penal Code in 2000. These measures have also helped to protect children born outside of marriage from abuse and neglect.
In sum, if cohabiting partners have a relationship similar to marriage, the legal relations between parents and children are similar to those of a family in which the parents are married.
- Bacaci, Dumitrache, Hageanu, 2005, Dreptul familiei, Bucuresti: AllBeck
- Dumănescu, L. (2012). Familia românească în comunism, Cluj-Napoca: Presa Universitara Clujeana.
- Filipescu, 2000, Tratat de dreptul familiei, Bucuresti: AllBeck
- Florian, E. 2003, Dreptul familiei, Cluj-Napoca: Limes
- Inglot, T., Szikra, D., Rat, C., 2012, „Familiy Policy in Poland, Hungary and Romania since 2000”, in Problems of Post-Communism, Vol.59, no.6, nov.dec.2012, 27-49.
- Inglot, T., Szikra, D., Raț, C. (2011).Continuity and Change in Family Policies of the New European Democracies: A Comparison of Poland, Hungary and Romania, National Council for Eurasian and East European Research, http://www.ucis.pitt.edu/nceeer/2011_825-10_Inglot1.pdf
- Moloman, B.D. 2012, Dictionar de dreptul familiei, Bucuresti: Universul Juridic
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- Rat, C. 2012, „Saracie si marginalizare sociala in randul familiilor cu copii”, in Rotariu, T., Voineagu, V (coord.). 2012, Inertie si schimbare. Dimensiuni sociale ale tranzitiei, Iasi: Polirom, 179-198.