AUTORITĂȚILE ROMÂNE FAȚĂ ÎN FAȚĂ CU INSTITUȚIA SEPARAȚIEI DE CORP CA EFECT AL APLICĂRII REGULAMENTELOR EUROPENE

Legal separation ("separaţia de corp") is a quasi-divorce, which does not lead to the dissolution of the marriage, but produces certain legal consequences on personal and patrimonial relations between spouses. Based on religious motivations, legal separation is the compromising solution adopted in states of Catholic religion, in which marriage is seen as an indissoluble and perpetual bond. Although known in several Member States of the European Union (EU), legal separation has meanings, conditions, procedure and effects that differ from one state to another. In Romanian law, the institution of legal separation is not regulated. The Orthodox religion, predominant in Romania, rejects the dogma of the indissolubility of marriage and allows divorce. However, in the Civil Code, among the provisions of private international law there is a rule indicating the law applicable to legal separation. The use of the notion, which is otherwise singular, is not accompanied by a definition or explanation of the term. In the European regulations (the Regulation Brussels II bis on jurisdiction1 and the Regulation Rome III on the applicable law2), directly applicable in Romania, two similar notions are used, those of "separare de drept' (legal separation) and of "separare de corp" (separation of body). Although in Romanian law the institution of legal separation does not benefit from a legal regulation, as an effect of the application of European regulations in case of divorces with foreign elements, the Romanian courts, as well as the notary in the divorce procedure and the superintendent registrar in the administrative divorce proceedings may be put in a position to rule on the legal separation. In this article we will first clarify the notion of legal separation in Romanian law and in one of the legislations of EU Member States participating in the enhanced cooperation under the Rome III Regulation, the Italian law. We will then establish, in the light of the judgment of the Court of Justice of the European Union in Case C-249/193, in which situations a Romanian court, a Romanian notary and a Romanian superintendent registrar may be put in a position to rule on the legal separation, analyzing the issue from the perspective of jurisdiction established under the Brussels II bis Regulation and the applicable law determined in accordance with the Rome III Regulation. Finally, we will identify possible solutions, taking into account the judgment of the Court of Justice of the E