Academic journal article Contemporary Readings in Law and Social Justice

Novelties in Engagement and Marriage Matters in the Light of the New Civil Code

Academic journal article Contemporary Readings in Law and Social Justice

Novelties in Engagement and Marriage Matters in the Light of the New Civil Code

Article excerpt

1. Marriage or Union between Persons of the Same Sex

Some laws regulate the union between persons of the same sex, that they assimilate to marriage; others regulate the free union between persons of different sex, without constituting a real marriage. Transsexualism has a de lege lata enshrining. In the case of transsexualism and sex change through medical intervention, provisions of article 44 of Law no. 115/1996 on civil status acts are applicable; these regulations state that in birth certificates and, where appropriate, in marriage or death certificates, changes relating to the civil status of the person shall be written, including in the event of sex change, but only after the final and irrevocable decision of the Court of law.

Under these circumstances, the person who has changed sex through medical intervention can marry a person of her initial sex, and there is no prohibition in this respect. The obligation to communicate these circumstances to the future spouse should be, however, mentioned because without this mention, the marriage will be voidable for deceit (Tomescu, 2005: 24; Florian, 2008: 31). From the perspective of comparative law, there is no distinction between marriage between persons of different sex or of the same sex. So, considering the recognition of sex change of transsexual persons and taking into account the case law of the ECHR, it results the right of a person to enter a marriage and this matter does not pose any particular problem regarding the matrimonial regime. If, however, the foundation itself of family relations enlarges, a "quasi-matrimonial" or "para-matrimonial" regime corresponding to these relations could be conceived. The case law, under the Family Code, applies, by analogy, some rules from the common property division of spouses (Avram, Nicolescu, 2010) to matrimonial relations between cohabitants.

2. ECHR Jurisprudence

The jurisprudence of the European Court of Human Rights is not as rich as in the case of other issues related to the respect for private life, transsexualism being rarely encountered. The present study analyzes mainly issues related to privacy and protection of this right by the Court, and not related to the protection of family life, as guaranteed by article 8 of the Convention, motivated by the fact that in the case of transgender couples, the Court has not implemented so far the right to family life protection, but only the right to privacy, by not accepting (until relatively recently) transgender marriages. The situation for homosexuals is the same.

In comparison to the practice of some countries of legal nonrecognition of the person's new identity, the interpretation of the Court has been evolving. Restrictive, originally, the Court considered that this attitude did not constitute a violation of the right to privacy, followed subsequently by a profound change in the sense of States acceptance of some positive obligations relating to transgender people. The failure of these obligations means the violation of article 8 of the Convention.

Although the text of the Convention does not contain a clear definition of the concept of privacy, it results from the Court jurisprudence that it does concern not only the physical and moral integrity of a person, but also aspects pertaining to the identity and sexual orientation of the person. Consequently, the text of the Convention takes into account also the protection of the moral and physical integrity of transsexual persons, with all the consequences arising from it, in terms of obligations incumbent upon the contracting states.

In the United Kingdom of Great Britain, against which most of the complaints were filed, as we showed in a previous study, the possibility of rectification of the birth certificate following a change of sex is not recognized by the State, the birth certificate having the function to record historical facts; the change of its mentions is not allowed. Moreover, the birth certificate is not commonly used, and the State allowed people who changed their sex to change their last names in accordance with the new sex of the person and insert it on other acts that serve to identify persons (passport, driver's license) and which are required in daily life situations. …

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