Lev Tolstoi once said that “What counts in making a happy marriage is not so much how compatible you are, but how you deal with incompatibility“, emphasizing the partnership aspect of marriage, focusing on navigating challenges together.

But is marriage rooted in partnership and love or in its contractual and practical elements as in Immanuel Kant’s philosophy, who defined marriage in terms of mutual obligations rather than love and emotion?

In Romania, the institution of marriage is a multifaceted concept that encompasses not only a personal or emotional commitment between two individuals, but also a broader social and cultural context. It is a legally binding union that carries with it a series of rights and obligations, as defined by the Romanian Civil Code. This raises the question of whether marriage can be viewed as a contract.

Marriage: A Contractual Framework?

Marriage shares certain common features with contracts, particularly in regard to the manner in which it defines the legal relationship between two individuals. Like a contract, marriage is a voluntary act that requires mutual consent and creates binding obligations. However, in contrast to a purely commercial or civil contract, marriage also engages public interest due to its profound social and legal implications. This combination of personal, moral, and public considerations gives marriage a distinctive status under Romanian law.

Rights and Obligations of Spouses: Article 309 of the Civil Code

The Romanian Civil Code outlines the fundamental rights and obligations of spouses in a manner that emphasizes both equality and mutual support. Article 309, a pivotal provision in this regard, establishes the core duties that each spouse is obliged to fulfill towards the other, as well as towards the family unit they have formed.

Mutual Respect – According to Article 309, spouses owe each other respect. This principle is fundamental and underpins the marital relationship, promoting an environment of equality. Respect not only refers to personal dignity but also extends to the consideration of each other’s opinions, values, and decisions.
Moral and Material Support – One of the most significant obligations in marriage is the duty to provide mutual support. This is not just limited to emotional or moral assistance, but also includes financial support. Both spouses must contribute to the family’s needs in proportion to their capabilities and financial means, ensuring that the family’s material well-being is protected. This duty applies not only in daily life but also during extraordinary situations such as illness, unemployment, or other forms of hardship.
Fidelity – Fidelity is another fundamental obligation established by Article 309. This duty of loyalty is not only a moral expectation but a legal one, with implications for both personal and financial aspects of the marriage. Breaching this duty may have consequences in cases of divorce, particularly regarding moral damages or the division of assets.
Cooperation – Spouses are required to cooperate in managing their family life, which includes sharing responsibilities, making decisions together, and supporting each other in achieving their individual and joint goals. Cooperation also involves making decisions about child-rearing, finances, and property management. This reinforces the idea that marriage is a partnership, not only of love but also of practical and legal responsibilities.
Joint Exercise of Parental Authority – If the spouses have children, their rights and obligations extend to the joint exercise of parental authority. This means that both parents have equal say in decisions concerning the upbringing, education, and well-being of their children. The principle of joint parental authority is designed to ensure that both spouses remain involved in the child’s life, even if they later divorce.

Beyond Article 309: Other Legal Provisions

While Article 309 provides the cornerstone for the rights and obligations of spouses, it is important to recognize that other provisions of the Civil Code expand on these principles. For instance, the Civil Code addresses the legal regime of matrimonial property, the rules governing inheritance in marriage, and the consequences of divorce.

One critical area is patrimonial rights, where spouses must choose between different property regimes, such as community of property or separation of property, which governs how their assets will be managed and divided. Moreover, in case of divorce, the legal provisions on the division of property and alimony come into play, reflecting the ongoing obligations spouses may have toward each other, even after their marriage ends.

In the end is Marriage just a Contract?

Given the framework of rights and obligations established by Romanian law, it is tempting to conclude that marriage functions similarly to a contract. Indeed, the requirement for mutual consent, the binding nature of obligations such as fidelity and support, and the potential consequences for breaching these duties make marriage comparable to a contract in many respects.

However, marriage also transcends the typical boundaries of a contract. It is not solely an agreement between two private individuals, but an institution that serves broader social and moral purposes. Marriage engages the public interest, particularly when it comes to issues such as child-rearing, inheritance, and public order.

Conclusion

While marriage in Romania contains many elements of a contract, it is, in fact, more than that. The rights and obligations outlined in Article 309 of the Civil Code, including mutual respect, fidelity, cooperation, and support, define marriage as a legal and social institution that deeply affects both spouses and society as a whole. Understanding these obligations helps couples navigate their relationship with a sense of responsibility and awareness, ensuring that their union is legally protected and mutually beneficial.

In the end, while marriage may have some contractual features, maybe Tolstoi’s belief in simplicity, mutual support and meaningful relationships is key to happiness (in marriage).

“I have lived through much, and now I think I have found what is needed for happiness. A quiet secluded life in the country, with the possibility of being useful to people to whom it is easy to do good, and who are not accustomed to have it done to them” – from Family Happiness, Lev Tolstoi.

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