THE PRIMARY REGIME – A FAMILY PROTECTION GUARANTEE WAYS TO BALANCE THE POWERS OF THE SPOUSES

Carmen-Oana Mihăilă

Abstract


Over the last years, the liberalization of matrimonial conventions has been one of the greatest achievements in civil legislation. Although the number of concluded matrimonial conventions is not very large, a major leap forward has been taken. Irrespective of the matrimonial regime mentioned by the spouses within a convention, or the possibility of the spouses to choose from a wider or smaller variety of regimes, there is a always a set of mandatory rules applicable for all these situations. These rules, referred to as the primary imperative regime, are a real „constitution” (as named by the French doctrine) of the matrimonial regimes, intended to protect the family. The provisions of the primary regime, which produce mandatory and immediate effects upon conclusion of marriage, are applicable for a normal and harmonious cohabitation of the couple but also at times of conjugal crisis. The family home, the spouses` economic and social independence, and the various mechanisms to control the spouses` powers are only a few elements of the primary regime that are approached within the present paper. The conventional and judicial mandates are considered real instruments to manage the patrimonial relations between the spouses. In addition, the paper provides a comparative analysis of similar provisions from the French and Belgian laws.


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