Matrimonial Property in Romania

What stays mine and what gets divided on divorce?

It’s the first question almost everyone going through a divorce asks me. If you didn’t sign a marriage contract (convenție matrimonială) at a notary, your matrimonial regime (regim matrimonial) is community of property (comunitate legală): everything either spouse acquired during the marriage is joint property (bun comun în devălmășie) from the date it was acquired (art. 339 of the Civil Code). Whose name is on the contract doesn’t matter; what matters is when it was acquired and where the money came from. Income from work and pension payments that fall due while the community lasts are joint too (art. 341 of the Civil Code).

What you owned before the marriage stays yours, because art. 339 only covers what is acquired while the regime applies. So does the separate property listed in art. 340 of the Civil Code:

• inheritances, legacies and gifts, unless whoever left or gave them to you expressly said they would be joint (art. 340(a));
• items for personal use and those used in your profession (art. 340(b) and (c));
• insurance payouts and compensation for harm done to you (art. 340(f));
• property or money that replaces separate property, for example a flat bought with the money from selling an inherited one (art. 340(g));
• the fruits of separate property, such as the rent from a property that’s yours alone (art. 340(h)).

You don’t have to prove that an asset is joint; whoever says it’s separate has to prove it, and between spouses any kind of evidence will do (art. 343(1) and (2) of the Civil Code). Movable property owned before the marriage is presumed joint if there’s no inventory of it (art. 343(3)).

In Cluj, I can help you choose a regime before the marriage, and with the division of property (partaj). I’ve written about the divorce itself on the divorce page, and other family situations are on the family law page.

The three matrimonial regimes

Couples about to marry can choose between community of property, separation of property (separație de bunuri) and conventional community (comunitate convențională) (art. 312(1) of the Civil Code). Whatever the regime, the rules on the family home and the costs of the marriage still apply (art. 312(2)).

What is a marriage contract?

A marriage contract is the document in which you choose a regime other than community of property, or adapt it (art. 329 of the Civil Code). It must be made as a deed authenticated by a notary, with both spouses’ consent, or it’s absolutely void (art. 330(1) of the Civil Code). You can sign it before the marriage, when it takes effect from the wedding date, or during the marriage (art. 330(2) and (3)). You can replace or change the regime as often as you like, but only after at least one year of marriage (art. 369(1)).

To be effective against third parties, the contract is entered in the National Notarial Register of Matrimonial Regimes (Registrul național notarial al regimurilor matrimoniale) and noted on the marriage record (art. 334(1) and (2) of the Civil Code); if it covers land or buildings, it’s also noted in the land register (carte funciară) (art. 334(4)). Without these registrations, third parties acting in good faith treat you as married under community of property (art. 313(3)). If the contract is void or annulled, community of property applies between the spouses (art. 338).

It makes sense when one spouse runs a business that could run up debts, when one of you comes into the marriage with substantial assets or with children from a previous relationship, or if you want a preciput clause (clauza de preciput), under which the surviving spouse takes certain joint assets, without paying for them, before the estate is divided (art. 333 of the Civil Code).

Is a home bought during the marriage in one spouse’s name joint property?

Yes, if it was bought while community of property applied, even if only one spouse appears in the contract and the land register (art. 339 of the Civil Code). The exception is a property paid for with one spouse’s own money, from an inheritance or from selling separate property: it stays separate (art. 340(g)), provided you can prove where the money came from. A property bought before the marriage stays with the spouse who bought it; instalments paid during the marriage from joint income are dealt with when the community is wound up, along with settling the debts (art. 357(1)).

The family home has special rules, whoever owns it: neither spouse can dispose of it or its furnishings without the other’s written consent (art. 322(1) and (2) of the Civil Code). If the home is noted in the land register as the family home (art. 321(2)), a transaction made without consent can be annulled within one year (art. 322(4)); without that note, the other spouse can only claim damages (art. 322(5)). On divorce, the court can give one spouse the benefit of the tenancy or the use of the joint home until the division, based on the interests of the minor children, fault in the divorce and each spouse’s housing options (art. 324(1) and (4)).

Is property split 50/50?

Not automatically. When the community is wound up, each spouse takes their separate property, then each one’s share of the joint property is set based on their contribution to acquiring it and to meeting the joint obligations; unless proven otherwise, the law presumes equal contribution (art. 357(1) and (2) of the Civil Code). Work in the home and raising the children count as a contribution to the costs of the marriage (art. 326 of the Civil Code) and carry weight when the shares are set.

Between the spouses, the regime ends on the date the divorce application is filed or, on request, on the date you actually separated (art. 385(1) and (2) of the Civil Code); anything you buy after that date is no longer part of the community. Until the division, the former spouses remain joint owners (art. 356): neither of you can sell the flat alone, and the divorce judgment doesn’t say who keeps what.

What happens to the mortgage and other debts?

Debts you took on together, debts linked to acquiring or managing joint property and debts one spouse took on for the ordinary costs of the marriage are joint debts. You’re liable for them with your joint property and, if that isn’t enough, jointly and severally with your separate property (art. 351 and 352 of the Civil Code).

Neither the divorce nor the division splits the mortgage: the bank isn’t a party to your agreement, and the loan contract stays with both of you as co-borrowers until the bank agrees to a change. The options are giving the property and the loan to the same spouse, who makes an equalisation payment (sultă) to the other; selling the property and paying off the loan from the price; or refinancing in one spouse’s name, with the bank’s agreement. The spouse who pays the instalments alone after the separation has a claim against the other for what they paid above their share (art. 352(1)), so keep proof of your payments.

Division at a notary or in court?

The community is wound up by a notarial deed (act autentic notarial), if you agree, or by a court judgment (art. 320 and 355(1) of the Civil Code). This can happen during the marriage (art. 358), together with the divorce or at any time afterwards, because a claim for division is never time-barred (art. 669).

A voluntary division can be done at any notary in Cluj, when you agree on the assets, the shares, who gets what and the equalisation payment.

A court division follows the special procedure in the Code of Civil Procedure (Codul de procedură civilă) (art. 980 to 996):

1. The application names the people sharing the property and sets out their title to it, all the assets, their value, where they are and who holds them (art. 981 of the Code of Civil Procedure).
2. The first hearing: the court hears each of you on every asset and encourages you to reach an agreement; any agreement, even a partial one, is confirmed in a judgment (art. 982 and 983).
3. The interim ruling admitting the claim in principle (încheierea de admitere în principiu) establishes the joint property, the shares and the claims between the spouses, and orders an expert report valuing the assets and forming the lots (art. 984 and 985(3)); it can only be challenged together with the decision on the merits (art. 987).
4. Allocation: the division is made in kind, with an equalisation payment for unequal lots (art. 984(2)), taking into account the parties’ agreement, the size of the shares, the nature of the assets and each spouse’s domicile and occupation (art. 988). A flat, which can’t be divided, is awarded to one spouse, provisionally or outright, who must pay the equalisation payment within a set time (art. 989 and 990); if neither of you asks for it, it’s sold by agreement or at auction by a bailiff (executor judecătoresc) (art. 991 and 992).
5. The division judgment has constitutive effect, is an enforceable title (titlu executoriu) and can only be challenged by appeal (art. 995), within 30 days of being served (art. 468(1)).

Applications for court division go to the district court, whatever the value (art. 94 point 1(j) of the Code of Civil Procedure). If you ask for division together with the divorce, it’s heard by the district court for your last shared home (art. 915(1)); if you ask separately, by the district court where the property is (art. 117(3)) or, if no immovable property is involved, by the court for the defendant’s (pârât) domicile (art. 107). For spouses who lived in the city, the case goes to the Cluj-Napoca District Court (Judecătoria Cluj-Napoca), and the appeal to the Cluj Tribunal (Tribunalul Cluj) (art. 95 point 2).

How much does dividing the property cost?

Court stamp duty (taxă judiciară de timbru) went down on 3 November 2024: division claims in court are charged half of the duty calculated under art. 3(1), on the value of the property to be divided (art. 5(1) of Government Emergency Ordinance no. 80/2013, OUG 80/2013, as amended by Law no. 268/2024). Several claims in the same action are charged once, at the highest value (art. 5(2)), and establishing co-ownership and each co-owner’s share is charged 50 lei per co-owner (art. 5(3)). You can estimate the amount with the stamp duty calculator.

If you reach an agreement during the case, the judgment confirming it is charged 20 lei plus half of the division duty (art. 11(1)(a) of OUG 80/2013). On top of that, there’s the fee of the court-appointed valuer and, at a notary, the notary’s fee according to the notarial scale. You’ll know my fee once I’ve seen the documents, before I start, and we put it in the contract (how my fee is set).

Can I divide the property years after the divorce?

Yes, at any time (art. 669 of the Civil Code), but waiting has a cost: evidence of contribution gets lost, assets deteriorate, and if a former spouse dies, the community is wound up with their heirs (art. 355(3) of the Civil Code). I’ve written about surnames, children and maintenance after divorce in the article on the effects of divorce (in Romanian).

What documents to prepare

• your marriage certificate and the divorce judgment or certificate;
• the marriage contract, if there is one;
• land register extracts (extras de carte funciară), acquisition contracts, car registration documents, bank statements;
• the loan agreement, the repayment schedule and proof of the instalments paid;
• evidence of your own contribution: income certificates, the certificate of inheritance (certificat de moștenitor), deeds of gift, transfers from your parents.

How I can help

From our first conversation, I’ll tell you which assets are joint, which are separate and what share you can argue for with your documents. If the other spouse is willing to talk, I negotiate the division and prepare the deed with a notary in Cluj. If not, I draft the division claim, prepare the evidence of your contribution and represent you at the Cluj-Napoca District Court and the Cluj Tribunal. Before the marriage, I advise you on choosing a regime and on drafting the marriage contract. I believe a negotiated division spares you both a long court case, but if that isn’t possible, I’ll see it through with you. The consolidated text of the Civil Code is on legislatie.just.ro.

Division can be done at any time, but evidence is easier to gather now. Write to me with what assets you have and I’ll tell you where we start.