1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union legislation?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(i) relates to the signature and the content of the authentic instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
If so, what are they? Are these only notarial acts or also acts of other authorities?
According to Article 269 of the Romanian Civil Procedure Code, an authentic instrument is a document which has been formally drawn up or which has been registered and authenticated by a public authority, by a notary or by another person vested with public authority by the State, in the form and under the conditions set out by the law. The authenticity of the document refers to the identification of the parties, to the recording of the consent of the parties with regard to the content of the document, to the signature of the parties and to the date of the document. Pursuant to paragraph 2 of the same article, any other document issued by a public authority that the law deems authentic shall be an authentic document.
Therefore, not only notarial documents are authentic documents, but also other documents issued by other authorities which meet the criteria set out above, e.g., documents issued by courts, by the civil registry, etc.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
3. Do all authentic instruments have the same enhanced probative value?
4. Enhanced probative value concerns:
- The date on which the authentic instrument was drawn up
- The place where the authentic instrument was drawn up
- The signature by the parties of the authentic instrument
- The parties’ declarations
- Any observation made by the authority within the limits of its competence
- The measures the authority declares to have taken
- Appearance, identification and consent of the parties
5. Enhanced probative value can be contested:
Before which authority: The court
According to which procedure (state the applicable rules): The enhanced probative value of the authentic instrument refers to those elements that have been personally ascertained by the notary, as per the relevant legal provisions. The enhanced probative value of these elements can be contested before a court of law.
Within what timeframe: Until the authenticity of the document is established by a judgment which acquires the authority of res judicata.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
Law no. 206/2016 for the amendment of the Emergency Ordinance no. 119/2006 on certain measures for the application of certain European Regulation upon the adherence of Romania to the European Union, as well as for the amendment of the Law no. 36/1995 on notaries and notarial activity:
- Art. I6
(2) The certificate regarding an authentic instrument in matters of succession, as provided in Annex 2, Form II of the Regulation no. 1.329/2014 is issued by the civil law notary that issued the authentic instrument. Where the archives of the civil law notary have been instructed to the relevant Notary Chamber, the certificate is issued by the civil law notary designated by the president of the Board of the Chamber.
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
The choice of law applicable to the succession.
Acceptance or waiver of the succession, revocation of a waiver of a succession.
Winding up (liquidation) of the matrimonial regime.
Sharing out of the estate of the deceased.
These authentic instruments are issued by the civil law notary, although in certain cases the authentic form is not required by the law (e.g., the will, the acceptance of the succession).
Lastly, we mention that the civil law notary who settles a succession has the competence to issue a specific instrument: the certificate of inheritance. For details, please refer to Question 3 below.
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
The Certificate of Inheritance – a specific instrument issued by the Romanian civil law notary in matters of succession.
According to article 1132 of the Romanian Civil Code, the certificate of inheritance is issued by the Romanian civil law notary.
Article 1133 states that the certificate of inheritance bears proof as to the quality of heir, as well as to the property rights of the heirs over the estate of the deceased, according to their respective shares.
Article 106 of the Law no. 36/1995 on notaries and notarial activity states that the number and the quality of heir or legatee are established according to civil status documents, to wills and as per the statements of witnesses. The rights over the assets that make up the estate of the deceased are established according to property deeds or according to any other method provided by the law.
1. What types of family law instruments exist?
- Deeds of parental partition by way of donation
- Matrimonial agreements (conventional community of property or separation of property)
- Choice of the law applicable to the matrimonial regime (authentic form for the choice of Romanian law)
- Statement for the registration in the Land registry of a lodging as the family’s place of abode
Also, a distinct mention must be made regarding certain specific documents issued by the Romanian civil law notary in matters of family law, that relate to the notarial divorce and to the exercise of parental authority after the divorce.
When the spouses wish to end their marriage by making use of the notarial procedure, the marriage will be terminated as of the date of the issuance of the divorce certificate by the civil law notary. Also, if there are minor children involved, the civil law notary will also issue a parental agreement, that will detail rights and obligations of the parents resulting from the joint exercise of the parental authority.