I First of all we have to take into consideration the difference between debility(fraility) and

alienation:

-on one hand debility/fraility = is a pshycological disorder which has been inherited
since the moment that person was born

-on the other hand alienation = pshycological illness developed during the lifetime, as
the person advances in age

The law which provides the transitorial provisions between the old civil code and the new civil
code stipulated under art 211 that: the meaning of mental alienation and debility is a
pshychological illness/disored/malady which determines the psyhical incapacity of the person
to make critical decisions and to act in his best interest in situations where the exercise of civil
rights and obligations depends on his/her consent

II The Romanian doctrine and the jurisprudence has pointed out two reason for which the
marriage shall be forbidden between two persons who happen to be in one of these situations:

a) The legal argument : as long as the person cannot judge for him/herself , there could
be no valid consent ( the person is not able to understand the
legal/practical/social significance of his/her actions )
b) The social argument : the general interest must prevail over the private one (
general interest= the conservation and the necessity to preserve the general
health of the population by excluding the possibility of giving birth to children with
mental illness
c) Furthermore: there may be some gaps when the alienated person is lucid (= he can
realize the significance of his actions) but even in these circumustances, the
alienated won’t be able to legally conclude the marriage.
d) When the consent is viced by another person who could benefit from it; for example
in cases where the person is administrated drugs

III Other requirements :

a) The diseas must have existed before the marriage had been concluded = the fact
that the other husband was aware about the state of mental health of the one
affected by the diseas could not be covered up by the recognition of the other one (
the reason being that the marriage is affected by absolute nullity, not a relative
one)

IV Other cases:
 a) In cases where one of the husbands is missing for a long period of time (in Ro the
civil code provides that a period of 3 years is necessary to pass..) and due to this
situation the court has delivered a judicial decision pronouncing the death of the
person, the other husband is able to conclude a valid marriage from a legal
perspective.
- If the husband who has been declared dead through a judicial decision re-
appears after the other husband has concluded another marriage, the
second one would be considered valid (save the case when the husband
knew that the other one was still alive = bad faith)
- If the first marriage had been declared void/null the second one would
benefit from the same legal effect (=being released from the nullity reason
that followed upon it)
b) In cases where the material consent (in the most common sense of the word) has
been given by another person (= one of the husbands has not been pshysically
present before the state officer who declared the marriage valid , even though one,
or both of the husbands ware absent)

-there has been a decision delivered by the Suprem Co. (and before other lower
courts) who decided that, a marriage concluded in those circumstances shall be
void; for instance: in a case where, instead of the woman who was to get marriage,
her sister has shown up before the civil officer.

c) The civil officer was not entitled/didn’t have the legal power to conclude the
marriage:

- application of the principle “error communis facit ius” : it happens when a so-
called state officer had exercised the functions of a state officer in public (=wearing the
distinctive elements which attest his function and authority) and by that creating an
appearance which induced the idea that the marriage will produce legal effects ( the idea
is that the husbands could not prevent this situation from happening since the list of the public
servants acting in this service/position is not available to the general public).

-simplified : the lack of material competence of the state officer could be covered up
only if : a) the “functions” have been exercised in public; b) the husbands have been
mislead by that person

c) Expressly mentioned by art 277: the prohibition of same sex marriages (the same
sex-marriage concluded in other states according to the legislative framework of
that state are not recognized in Ro) (not even the civil partnerships) (danemarca a
 fost prima tare care a legalizat casatoria intre pers de acelasi sex in 89’ si Olanda
printr- lege intrata in vigoare la 1 aprl 2001)
d) Adoption/marriage concluded between the members of the same family
e) Lack of the publicity of the marriage statement
f) The requirements regarding the publicity, solemnity and other procedural
obligations :
-two witnesses must be present at the moment when the husband are giving
their consent
-the consent can only be given before the state officer