Childbirth and Child Rearing Benefits Bestowed on Non-Traditional Families in Romania
- Florian & Floare
- 3 days ago
- 10 min read
Prof. Dr. Emese Florian*
Dr. Marius Ioan Floare**
1. Range of non-traditional family structures in legal doctrine
Romanian family law regulates only the traditional marriage between a man and woman,[1] banning same-sex marriages and not recognising registered partnerships for any couple.[2] However, it maintains a well-established and highly progressive perspective regarding children, irrespective of whether they are born or conceived during marriage or out of wedlock. Family law treats all children equally regardless of their birth status, indicating a slight difference only in the establishment of their paternity. It accommodates non-traditional families by allowing exceptions for the exclusive or unilateral exercise of parental authority by a single parent,[3] joint exercise of parental authority by nonmarried parents,[4] subsequent adoption by the first adoptive parent’s consensual partner, and several civil law provisions regarding the joint ownership of assets.
Romanian legal doctrine has been quite proficient in identifying non-traditional family structures, although positive law regulations are lacking in this respect.[5] The consensus is that although any type of registered partnerships and same-sex marriages are forbidden and foreign-concluded ones remain unrecognised in Romania, non-registered cohabitation is a very widespread social practice that, despite not being expressly regulated as such, has never been forbidden by law.[6] The legal “contour” of consensually cohabiting couples can be sketched by examining disparate private law regulations that tangentially touch on their status and applying general civil law provisions where there are no special statutes. Single-parent families have been widely recognised for decades, despite being outside the narrow legal definition of a family based on heterosexual marriage.
For years, the legal community has been demanding the establishment of a legal status for registered partnerships, particularly for those having no other option.[7] On 23 May 2023, the European Court of Human Rights found in Case no. 20081/19, Buhuceanu and others, that Romania had violated the plaintiffs’ (21 same-sex couples) rights to family life and private life, enshrined in Article 8 of the European Convention on Human Rights, by not providing any form of legal status or recognition for same-sex couples.[8]
In the past 13 years, several attempts were made to adopt a statute on civil partnerships;[9] however, the Parliament rejected two of these initiatives in 2014[10] and 2015,[11] after another similar bill, which was introduced in 2010, was withdrawn in 2012.[12] The fourth recorded initiative of this kind, promoted in 2016,[13] was rejected by the Senate in October 2016. To this day, it remains tangled in red tape in the Chamber of Deputies. Another law project regulating civil partnerships was registered in the Parliament in June 2018;[14] however, it was also rejected by the Senate in October 2018, right after the failed referendum of 2018 regarding a narrow and traditional constitutional definition of marriage, and subsequently rejected by the Chamber of Deputies, as well, on 28 September 2021, with 226 votes against and only 57 in favour.
2. Current private law regulations related to non-traditional families in Romania
Current Romanian private law provisions are highly amenable to the implicit recognition of non-traditional family structures involving children. Law no. 272/2004, which pertains to the protection and strengthening of the rights of the child, even defines the concept of family for its purposes as a structure including parents and their children (Art. 4b) without referring to the parents’ marital status.
The most progressive changes in legally recognising consensually cohabiting heterosexual couples as full-fledged families are the ones made in December 2011 to Law no. 273/2004 on the adoption procedure, which enables the cohabiting partner of a single adoptive parent to subsequently adopt the same child if their relationship is durable and the partners are of different sexes, not married, and not related between them to the fourth degree.[15] This cohabiting partner can adopt the child if they have directly taken part in raising and caring for the child for an uninterrupted period of 5 years. Some legal scholars contend that this provision applies to the adoption of the natural child of one of the cohabiting partners,[16] although the text specifically refers to exceptions to the ban on subsequent adoptions. Therefore, a prior adoption by a single person can be considered a prerequisite.[17]
Even traditional family law has been recognising the equal status of children born outside marriage and those born or conceived during marriage for at least 70 years, following the enactment of the Communist Family Code in 1953, in all areas: parental rights, inheritance, and legal maintenance. Both the parents had equal legal status and default equal legal rights even if they were not married.
For decades, family law has been progressive in recognising non-traditional family structures involving children; however, the same cannot be said about recognising and registering couples other than those in heterosexual marriages. The older Family Code of 1953 does not even mention an explicit ban on same-sex marriages; however, this glaring omission was due to the fact that homosexuality was a crime until 2000 and not because of any liberal intent. Legal doctrine has always considered sexual difference a prerequisite for marriage, specifying same-sex marriages to be void. Even the recent 2009 Civil Code explicitly bans same-sex marriages in domestic law and denies legal recognition, as a matter of public order in international private law, to foreign same-sex marriages and both same-sex and heterosexual foreign-registered partnerships.[18] Whereas private law provides no legal status for unmarried cohabiting partners, civil law provisions[19] on the joint ownership of assets,[20] unjust enrichment,[21] and negotiorum gestio[22] offer consolation and protection to consensual couples who unavoidably find themselves in asset or liability entanglements.
3. Childbirth and child rearing benefits for non-traditional families
Owing to the more progressive nature of Romanian social law compared to family law, benefits related to childbirth and child rearing are frequently awarded based solely on filiation, with scant consideration of parents’ matrimonial status. Some benefits are even awarded to several types of non-traditional families, which are “anchored” solely on cohabitation and means testing.
The flagship child rearing benefit is child rearing allowance, coupled with the corresponding child rearing work leave. The allowance for child rearing can be paid to either the biological mother or the biological father of the child or to the adoptive parent, legal guardians, or nonprofessional foster parents of the child in case they fulfil the taxable income requirements. The allowance for child rearing is 85% of the average after-tax income gained in the 12 months preceding the child’s birth, without exceeding the equivalent of 1,700 Euro/month, while also involving a guaranteed minimum allowance of 300 Euro. The allowance for child rearing is paid from the end of the mother’s childbirth leave until the child’s second birthday, or even the third birthday for children with disabilities. If both parents fulfil the conditions for receiving this allowance, the second parent has to take at least two months off and receive this allowance; otherwise, the two months are lost and non-transferrable to the other parent.
The allowance for families with underage children and limited means (Law no. 277/2010) is applicable to single-parent families comprising a single adult and their dependent children living together or an unmarried man and woman living together with either of their children. Further, families include the soon-to-be adopted children placed with future adoptive parents by the court and foster children placed with unpaid foster parents and children living under guardianship. This allowance varies according to the family’s composition and average after-tax monthly income from a maximum equivalent to 104 Euro/month for a single-parent family with four or more children and an average monthly income of less than 48 Euro/month/person, to a minimum of 18 Euro/month, for a two-parent family with a single child and an average monthly income between 48 and 126 Euro/month/person.
Law no. 416/2001 on social minimum income includes the following in the legal definition of recipient families: single parents with children, adult childless siblings living together separately from their parents, and cohabiting different-sex couples with dependent children. The guaranteed social minimum income varies between 62 Euro/month for a single-person household and 127 Euro for a five-person household, with an additional 9 Euro/month for each supplemental family member. Another social benefit that is available for non-traditional families is “minimum income for inclusion” (Law no. 196/2016), a selective social benefit for families who have lost or diminished their social integration capacity. Families are broadly defined as single-parent families, informal cohabitation with different-sex partners, and families with or without underage or dependent children. The benefits for social inclusion are means-tested and, to qualify for these benefits, the beneficiary’s monthly after-tax income must be less than 140 Euro for a single person, with 70 Euro being added for each additional family member. The aid provided to families with children has a two-tiered structure. The first tier is for families earning less than 55 Euro/month for the first person and 50% of this value for each subsequent person. The aid for two-parent families is between 22 and 88 Euro/month for one and four or more children, respectively, whereas the aid for single-parent families is between 24 and 96 Euro. The second tier is for families earning between 55 and 140 Euro/month for the first person and 50% of that for each subsequent person; the aid for two-parent families is between 17 Euro/month for one child and 68 Euro for four or more children, whereas the aid for single-parent households is between 22 and 86 Euro.
4. Available work leave for non-traditional families
The law on child rearing leave allows either parent to take paid time off for child rearing, which can only be grantedafter the mother completes her minimum compulsory 42 days of maternity leave after childbirth. This parental leave lasts until the child is 2 years old, or even 3 years old for a child with disability (Art. 2 par. 1 Government Emergency Decree (G.E.D.) 111/2010). This leave can be availed by either biological parent, adoptive or future adoptive parents after the court entrusts the child to them, foster parents, legal guardians, or emergency foster parents but not paid maternal assistants (Art. 8 G.E.D. 111/2010).
Employees can take a maximum of 45 days a year of medical leave to care for a sick child until the latter becomes 12 years of age or 18 years of age for a child with disabilities and intercurrent afflictions (Art. 26 par. 1 G.E.D. 158/2005). During these work leaves, the employment contract can be suspended (Article 51 par. One Labour Code) but not terminated by the employer (Art. 60 par. 1 e and f LC). These caring leaves are available to not only biological parents, who generally qualify for any type of medical leave, but also adoptive parents, court-appointed legal guardians, those who have been entrusted with the children during an adoption process, or foster parents (Art. 27 G.E.D. 158/2010).
5. Conclusions
Romanian private law has no specific or detailed regulations on consensual couples and other non-traditional family structures (single-parent families, same-sex couples, cohabiting couples with children from different marriages, and stepparents), whereas international private law expressly forbids the recognition of foreign same-sex marriages and any type of foreign-registered partnership.
Simultaneously, social law benefits a wide array of family structures. Moreover, benefits are provided to single-parent families comprising a single adult and their dependent children living together or an unmarried man and woman, either childless or living together with either of their children. Families include the soon-to-be adopted children placed with their future adoptive parents by the court, foster children placed with unpaid foster parents, children living under guardianship, and adult childless siblings living together separately from their parents, as well.
*Full Professor, “Babeș-Bolyai” University, Cluj-Napoca, Romania.
**Assistant Professor, “Babeș-Bolyai” University, Cluj-Napoca, Romania.
[1] Florian, E. (2021) in Baias, Fl. A. et al (eds.), Codul civil – Comentariu pe articole (Civil Code – Comments by article), Third Edition, Bucharest: C.H. Beck Editions, pp. 326-328
[2] Ibidem, pp. 359-362; see also Oprea, E.A. (2023) in Popescu, D.A., Oprea, E.A., Drept internațional privat (International Private Law), Bucharest: Hamangiu Editions, pp. 363-365
[3] Baias, F.-A., Nicolescu, C.M. (2021) in Baias, Fl. A. et al (eds.), Codul civil – Comentariu pe articole (Civil Code – Comments by article), Third Edition, Bucharest: C.H. Beck Editions, pp. 534-536; Irimia, C. (2021) in Baias, Fl. A. et al (eds.), Codul civil – Comentariu pe articole (Civil Code – Comments by article), Third Edition, Bucharest: C.H. Beck Editions, p. 682
[4] Irimia, 2021, pp. 680-682
[5] Avram, M. (2022) Drept civil. Familia (Civil Law. Family). Third edition, Bucharest: Hamangiu Editions, pp. 767-792; Mihăilă, O. (2019) ‘Parteneriatele înregistrate. Între realitate și deziderat legislativ și social’ (Registered Partnerships. Between Reality and Social and Statutory Requirement), Revista de Dreptul Familiei (Family Law Review), 2019/1-2, pp. 289-307; see also Florian, E. (2022) Dreptul familiei – Căsătoria. Regimuri matrimoniale. Filiația (Family Law – Marriage. Matrimonial Property Regimes. Filiation), Eighth edition, Bucharest: C.H. Beck Editions, pp. 2, 6-7, 16
[6] Avram, 2022, p. 769
[7] Avram, 2022, pp. 32-38; Mihăilă, 2019, pp. 291-292, 305
[8] Cases nos. 20081/19 and 20 others Buhuceanu and others v. Romania, available at https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-224774%22]}, last retrieved on May 26th, 2023
[9] Mihăilă, 2019, pp. 299-301
[10] Law Project Pl-x 670 of December 23rd, 2013, rejected on June 11th, 2014, available at https://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=13901, last retrieved on August 14th, 2023
[11] Law Project Pl-x 340 of April 7th, 2015, rejected on December 9th, 2015, available at https://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=14867, last retrieved on August 14th, 2023
[12] Law Project BP 855 of October 13th, 2010, withdrawn on February 23rd, 2012, available at https://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=11483, last retrieved on August 14th, 2023
[13] Law Project PL-x 498 of October 31st, 2016, available at https://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=16017, last retrieved on August 14th, 2023
[14] Law Project PL-x 662 of October 31st, 2018, rejected on September 28th, 2021, available at https://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=17482, last retrieved on August 14th, 2023
[15] Florian, 2022, pp. 509-510; Avram, 2022, pp. 341-343; Motica, A.R. (2021) Dreptul civil al familiei – Raporturile nepatrimoniale. Curs teoretic și practic (The Civil Law for Families – Personal Rapports. Theoretical and Practical Course), Third edition, Bucharest: Universul Juridic Editions, p. 257
[16] Avram, 2022, pp. 342-343; Motica, 2021, p. 257
[17] Florian, 2022, pp. 509-510
[18] Oprea, 2023, pp. 363-365
[19] Mihăilă, 2019, p. 300
[20] Chelaru, E. (2021) in Baias, Fl. A. et al (eds.), Codul civil – Comentariu pe articole (Civil Code – Comments by article), Third Edition, Bucharest: C.H. Beck Editions, pp. 830-843
[21] Uluitu, A.-G. (2021) in Baias, Fl. A. et al (eds.), Codul civil – Comentariu pe articole (Civil Code – Comments by article), Third Edition, Bucharest: C.H. Beck Editions, pp. 1600-1601
[22] Ibidem, pp. 1592-1598
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