News

Hight Court of Cassation and Justice: Divorce cannot be done through a mediation agreement

18 December 2019

On December 9, 2019, the High Court of Cassation and Justice – Completion for the resolution of appeals in the interest of the law, admitted the appeal made by the People’s Advocate by Decision no. 33 in the file no. 2023/1/2019.

By the decision mentioned above, the „ICCJ” sought to clarify the interpretation of the provisions of Law no. 192/2006 regarding the mediation and organization of the profession of mediator, regarding the possibility of divorce through a mediation agreement concluded by the spouses.

Thus, the High Court ruled that in the unitary interpretation and application of the provisions of art. 2 paragraph (4), art. 59 paragraph (2) and art. 64 paragraph (2) of Law no. 192/2006 regarding the mediation and organization of the profession of mediator, as subsequently amended and supplemented, the court cannot enforce the mediation agreement regarding the agreement of the parties regarding the dissolution of the marriage.

However, the ICCJ has established that the spouses will still be able to use the mediation agreement to resolve the accessory aspects of the divorce, an example of this being the establishment of the name through the mediation agreement.

The main motivation considered by both the High Court and the People’s Advocate, who demanded the appeal in the interest of the law in question, is that the divorce is a strictly personal action, excluded from the scope of the elements that can be subject to mediation.

After publication in the Official Gazette, the High Court’s solution will become mandatory, as provided in the art. 517 para. (4) of the Civil Procedure Code.