23.01.2025

Is it possible to divorce an incapacitated person through a guardian? Case-law solutions

According to the Romanian Civil Code, marriage is an eminently personal legal act, which can be legally concluded only by the consent of the spouses, freely and directly expressed before the civil registrar. Modern laws no longer allow marriages at a distance, by proxy or by power of attorney, although this practice has been used throughout history, particularly by royal or imperial couples, when the future spouses not only lived in different countries, but did not even know each other. The marriage between Louis XVI (then Dauphin of France) and Marie-Antoinette (Archduchess of Austria), for example, was concluded by proxy. The Emperor Napoleon himself, the father of the French Civil Code of 1804, which laicized marriage as a contract, married the Archduchess Marie-Louise of Austria by proxy for political reasons, to pacify the Eastern Front and to consolidate and legitimize his new imperial power.

According to the principle of symmetry of legal forms, if the conclusion of the marriage is conditional on the personal presence of the parties, divorce by consent (in court, notarial or administrative) follows the same procedure, with the parties' consent to the dissolution of the marriage having to be verified directly. Even in the case of fault-based divorce, the Code of Civil Procedure requires the compulsory presence of the plaintiff spouse at the trial, on pain of dismissal of the action as unsubstantiated.

In practice, a particular problem has arisen in relation to the situation of a septuagenarian, non-disabled husband, suffering from Alzheimer's disease, placed under special guardianship and separated from his wife for more than two years, without any intention or initiative on the part of either spouse to resume cohabitation. Could the incapable spouse have sought the divorce through his appointed guardian, i.e. his legal representative?

Since Article 276 of the Civil Code allows the marriage of a person placed under special guardianship only with the consent of the guardian, we considered that reciprocity was also valid, so that the divorce could also be sought by the plaintiff spouse, represented by his guardian.

The petition for divorce was registered with the Cluj Napoca District Court by the plaintiff, legally represented by his guardian, the incapable spouse invoking as grounds for divorce de facto separation and a state of health which makes it impossible to continue the marriage, thus assuming all the blame for the failure of the marriage. Surprisingly, the respondent wife lodged a statement of defence in which she indicated that, after 38 years of cohabitation, she agrees to the dissolution of the marriage, both spouses having left the marital home since the de facto separation.

The question arose as to the correlation between the prohibitive provisions of the Civil Code, which prohibit divorce by agreement if one of the spouses has special guardianship (it being presumed that the existence of consent to the dissolution of the marriage cannot be directly verified, given the total or partial lack of discernment), and the more permissive provisions of the procedural law, which allow the guardian to give his or her consent to the dissolution of the marriage (but not to the ancillary issues relating to minor children). Thus, the Code of Civil Procedure contains provisions allowing the guardian to apply for divorce in the name and on behalf of the incapable spouse, to appear in court in the place of the petitioning spouse and to support the petition, and even to give his or her consent to the amicable divorce.

It is clear from those clear provisions that the prohibition of divorce by agreement applies only to divorce by notarial or administrative divorce and not to divorce by court order, the dissolution of the marriage by the court being regarded as a sufficient guarantee of respect for the rights of the incapable spouse. In the present case, by the civil judgment delivered by the Cluj Napoca District Court, the court took note of the parties' agreement on the divorce and ordered the dissolution of the marriage by agreement of the spouses, without any verification as to fault and without giving reasons. The judgment is, according to the law, final from the date of pronouncement.