Acta Universitatis Danubius. Juridica, Vol 6, No 3 (2010)

Abstract

Jurisdiction of the Romanian courts in divorce matters with an international element was established prior to the accession of Romania to the European Union, through the application of art. Of Law No. 148-157. 105/1992 on private international law. The court hearing such an application, and check the power either on its own or as a result of the defendant to plead the exception of judicial incompetence, was on hand one of two legal solutions, namely: either reject that objection and statement jurisdiction, in which was to identify the scope of art. 20 and art. 22 of Law no. 105/1992, under the law applicable to divorce matters of substantive law, be admitted and dismissed the action except in the art. 157 of Law no. 105/1992, as being the Romanian courts, but a foreign court. The situation changed with the accession of Romania to the European Union, the European Union Council regulations take precedence over national law and are in direct and immediate causes they judge Romanian courts. Strictly speaking the process of dissolution of marriage, today, are the provisions of Regulation (EC) no. 2201/2003 of the European Union of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) no. 1347/2000, also known as the Brussels II Regulation. New powers for the European Union in relation to matrimonial causes the Romanian judge to consider two categories of sources of law, depending on the connecting element (habitual residence of the spouses or one of them joint nationality) that appears in case of divorce, which links process or the Community or at extra. Thus, if the connecting element is inside the European Union, only between Member States (eg, spouses Romanian citizens living in Italy or Spain), the exclusive law, namely Regulation Brussels II bis. Conversely, if the ratio of private international law is established with an element makes contact with any non-EU member countries, are incidental to Law no. 105/1992. This duality has created confusion in the two years of application of Community law by the Romanian courts. This material was suggested to us by the judgments given in cases of divorce court with an element that either ignored the provisions of the Brussels II Regulation or, in an undue zeal, to apply that law to the detriment of Law no. 105/1992. The study aims, inter alia, to consider the criteria by which the Romanian courts have their jurisdiction in a divorce case in which element is related to an EU Member State and the solutions we have on hand to jurisdiction to rule on the objection of jurisdictional and the plea of pending proceedings and shoulders showing in this respect from the case. Also, there are references and regulation relationship with other international conventions / bilateral divorce.