Alimony regime in the law on marriage and family in 2000

for each other because the person receiving the support is sick or the other party voluntarily provides support. At the People's Court of Hoai Duc district - Ha Tay, out of a total of 97 divorce cases that the Court resolved from January 2003 to December 2003, there were only 2 cases where the wife requested the husband to provide support and 1 case where the Court decided that the husband must provide support. Currently, according to the opinions of some judges, the case of support between husband and wife upon divorce only occurs mainly in urban areas and areas with high education and high living needs such as in big cities: Hanoi, Ho Chi Minh City... Thus, it may be due to pride, vanity or lack of legal knowledge that in many cases one party is really in difficulty and poverty but does not request the other party to provide support. Another objective reason is that the assessment of the level of difficulty and poverty of the party requesting support and the actual ability of the other party is not consistent with the criteria prescribed by law. There are cases where the party in difficulty during the divorce requests the other party to pay alimony, but because they no longer have feelings for each other, the other party refuses to pay alimony and gives the reason that they are unable to pay alimony. However, in reality, they have assets and a stable, high income, but because the Court did not collect and verify the parties' income accurately, their request for alimony was rejected.

For example, the divorce case between Mr. Truong Minh Nghia (40 years old) and Ms. Nguyen Thu Ha (40 years old) was tried at first instance by the People's Court of Hung Nguyen District - Nghe An in judgment No. 02/LHST dated February 23, 2003 and the People's Court of Nghe An Province in appeal judgment No. 17/LHPT dated February 5, 2004. Ms. Ha requested Mr. Nghia to provide a one-time alimony so that she could stabilize her life immediately after the divorce because Ms. Ha worked in agriculture and had a very low income. However, the Court did not accept that request on the grounds that she was still healthy and Mr. Nghia had no other income besides his salary. According to the case file, Mr. Nghia had a house in Vinh city, with a civil servant salary of over 900,000 VND/month. Yet the Court

Rejecting Ms. Ha's request for alimony is not in accordance with the spirit of the alimony law.

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In reality, there are cases where one spouse requests the Court to force the other to provide child support when they do not request a divorce, but the Court does not accept the case because it believes that the law does not require parents to provide child support when the parents are still married. According to the provisions of the Law on Marriage and Family, the Court's refusal to accept the request for child support is incorrect. Because if for some reason one spouse does not contribute their income to raise the child, which means they have evaded the obligation to raise the child, the person directly raising the child has the right to request the Court to force the other spouse to provide child support. In addition, there are cases where the Court rejects the divorce request, which means rejecting the request for child support.

We must also acknowledge that the Law on Marriage and Family stipulates that parents have the obligation to provide support for their minor children, adult children who are disabled, have lost civil capacity, are unable to work and have no assets to support themselves. As analyzed, minors who are unable to work, including those who are healthy but have to spend all their time studying at general schools, universities, high schools, and vocational schools, are still subjects in need of support. However, through the practice of trial at the Court, there has not been any judgment deciding on support for adult children who are studying because the children have grown up, so the issue of raising and providing support for children does not arise. For example: According to judgment 09/PTDS dated March 10, 2003 of the Supreme People's Court in Ho Chi Minh City on the divorce case between Mr. Pham Ngoc Chu, born in 1959, residing at 466/33B Le Van Sy - Ward 14 - District 3 - City. HCM with Ms. Nguyen Thi Ngoc Hoang born in 1958, residing at the same address. The two parties are legally married and have two children together, Pham Hoang Chuong born in 1985 and Pham Hoang Chinh born in 1987. The court issued a decision.

In the case of the People's Court, the two children were given to Ms. Hoang to raise directly, and Mr. Chu provided 300,000 VND in child support for Chinh every month until he became an adult, while Chuong, who had become an adult, was not provided with child support. We cannot deny that although Chuong is an adult, he is studying at university and cannot work, so he cannot support himself, and on the contrary, Ms. Hoang has to provide for his children's tuition. Will the Court's decision ensure the rights of the children???

Another fact that occurs when adjudicating in Court is that although the law does not stipulate a specific level of support, the Courts rely on the conditions of the party with the obligation to provide support to decide the level of support. And they only focus on determining the ability of the person with the obligation to provide support rather than determining the essential needs of the person receiving support. When considering to calculate the level of support, the Court does not consider that healthy children have different needs than sick children, children who are in school are different from children who are not in school, primary school is different from university... but the Court only decides the level of support according to the normal level in the locality without considering other special circumstances of the person receiving support to decide a higher level of support. And in reality, the Courts decide the support levels are very different: 30kg of rice, 300,000 VND/month for 1 child, 100 USD/month for 2 children. We believe that in order for the judgment to be feasible, the Court should have a monetary standard for easy enforcement. The principle of enforcement must comply with the provisions of the judgment. But if the judgment states that the husband has the obligation to provide 30 kg of rice for child support per month, and when the husband brings rice but the wife refuses to accept it because the rice is not good and does not meet the standards, what should we do?

In addition, when the Court declares the method of monthly support until the child is an adult (usually a very long time, possibly over 10 years). The application of such support method is legal. However, the way of regulation and consideration

Such a treatment is formal and difficult to enforce. Because in principle, child support is the responsibility and duty of parents after divorce, but in reality, the implementation of that obligation is only strictly followed by the parties in the first few months or years and then ends on its own. At this time, the feelings and nature of the relationship between father, mother and child are different from the time of divorce. At that time, can the wife demand that the husband pay child support of 150,000 VND per month if they forget to pay and forget to pay support for one or two months with a very small amount (less than 500,000 VND), can the Court handle the crime of evading the obligation to pay support?

Another fact is that because we lack specific regulations on the time of performing the alimony obligation, when deciding on alimony, the Court has had different solutions in each specific case. Most of the Court's judgments or decisions determine the time of starting to perform the alimony obligation as the date of opening the first instance trial to resolve requests for determining the parents of the child, annulling illegal marriages, divorce requested by one party or the date the first instance Court issues a decision on the alimony. For example: Decision on the alimony No. 04/QD-TTLH dated February 6, 2004 of the People's Court of Nghe An province recognized the consensual divorce between Mr. Trinh Van Toan, who is living in Taiwan, and Ms. Truong Minh Huong. The Court decided to give custody of the child to Ms. Huong, and Mr. Toan has the obligation to provide alimony for the child of 500,000 VND/month from January 2004. In this case, the time of performing the alimony obligation is determined to be more than 01 month before the date the Court issues the decision on the alimony. In some other cases, the time of performing the alimony obligation is calculated from the time the person with the alimony obligation fails to perform the alimony obligation. Determining the time of performing the alimony obligation is an important issue, not only affecting the quality of the Court's adjudication but also affecting the legitimate rights and interests of the person receiving alimony as well as the person with the alimony obligation.

We think that the most appropriate time to start performing the maintenance obligation is from the time the Court of First Instance conducts the trial, except in cases where the Court applies temporary emergency measures to force the person with the maintenance obligation to perform part of the obligation in advance in the case of divorce from a pregnant wife, then the time to start performing the maintenance obligation is from the time the child is born.

In practice, when the Court decides on a divorce due to one party being missing and they have a child together, the issue of alimony between husband and wife, between parents and children is not mentioned. For example: Judgment No. 15/LHST dated November 17, 2003 of the People's Court of Vinh City resolved the divorce between Ms. Le Thu Minh and Mr. Truong Thanh Binh because Mr. Binh was missing. The Court decided to assign Truong Thanh Hai to Ms. Minh to raise until he is an adult, without raising the issue of alimony for the child. We think that our law has quite specific provisions on the issue of property management of a person declared missing (Article 89- Civil Code), in which the property manager of a person declared missing enjoys certain rights and must perform certain obligations, so they can deduct a portion of that property to perform the obligation of alimony when requested by the Court. This shows that a person declared missing can still fulfill his/her obligation to provide support with his/her assets through the property manager. However, in reality, when resolving divorce cases due to one party being missing in court, the Court does not decide on child support, so the rights and legitimate interests of the child are not guaranteed.

Causes of the above situations

We cannot point out effective solutions for perfecting the alimony system in Vietnamese law when we have not found the fundamental causes of the above shortcomings, just as a doctor cannot

How can you cure a patient without even knowing what kind of disease it is?!

There are many objective and subjective reasons affecting family life in Vietnam in general and the alimony relationship in particular.

Some basic objective reasons are as follows:

First : The impacts of the market mechanism with fierce competition, the market mechanism requires people to calculate and account for themselves to survive and develop. In marriage, people are also affected by that way of thinking. What is the purpose of getting married if not to build a happy family, to live together until old age? The answer seems to be no. Nowadays, people get married for many other reasons, to be exact, more for money. This is clearly shown through marriages with foreigners, through the increasing number of divorces.

For example: Recently in the South, specifically in Vinh Long province, from 1993 to 2004, there were 3,789 cases of women marrying Taiwanese men. They married not for love but to have more money to support their families. More than 80% of those who married Taiwanese men, due to language barriers, age differences, and cultural conflicts, are in difficult circumstances. Many have to work as maids for their husbands and their husbands' families, living extremely miserable lives but with no way to escape. Furthermore, children of mixed Taiwanese descent, born in Vietnam and holding Vietnamese nationality, are not allowed to immigrate to Taiwan when their parents divorce. This is not only a burden for these women but also a burden for Vietnamese society as a whole.

Second : The impacts of industrialization and urbanization. No one can deny the positive aspects of industrialization and urbanization on economic life as well as the development of other areas of social life. But like a medal, there are always its "ugly sides". Everyone has to work to earn money. Parents go to work early and come home late at night. Children have to hurry to go to school in the morning, and have to learn more in the afternoon and evening. In the evening, the only time for the whole family to reunite is dinner. Then everyone has to hurry to arrange work for the next day. There is only the weekend for the whole family to rest and chat together. But if they do not have the same interests, conflicts will occur. Conflicts in the family will arise if the parties do not know how to share the pressures of work, the demands and needs of the market mechanism. The inevitable result of conflicts is divorce. With the great changes due to development requirements, due to absorbing influences from near and far, due to the "looseness and slipping of locks" of traditional customs, today Vietnamese families are in an alarming state.

Third : The objective cause that cannot be ignored is the influence of foreign cultures.

After many years of arduous war, there are countless daughters who are still faithfully waiting for their husbands and lovers to return. Those mothers and wives have entered Vietnamese poetry as great heroes. And when their husbands do not return, mothers and sisters are willing to stay single and raise their children. Nowadays, the influence of foreign cultures through TV programs, movies, and photographs has been eroding Vietnamese family culture every day, every hour. Scenes of forbidden love, love triangles, divorce, and remarriage are shown on TV every day.

Obscene tapes and discs are sold all over the streets. Meanwhile, sex education has not been included in the curriculum to guide cultural behavior in love, friendship, and marital relationships. People who get married but cannot live together will divorce each other, at most they will pay a few hundred thousand dong in child support!? In the past, (under feudalism), an unmarried woman who had a child would be ridiculed by the whole society, even having her head shaved and painted with lime by the whole village; men and women who had illicit relations with each other would be considered adultery. But today, illegitimate children have been recognized by law; men and women (of adult age) who have relations with each other as husband and wife are their personal rights, if they don't like it, they will pair up with someone else!?

Some subjective reasons:

Firstly : It is an incomplete legal system with many overlapping contradictions. This is considered an inherent fundamental cause of the Vietnamese legal system in general and of legal documents on marriage and family in particular in the process of transforming the market mechanism under the management of the State in the direction of socialism. Because, in principle, the law is considered the most effective tool for the State to regulate social relations. However, before the rapid changes of social relations in the market mechanism, along with the process of urbanization and integration, the opening of social relations is not really stable. On the other hand, the State can only set out legal principles to regulate social relations when those social relations are repeated and become a common phenomenon affecting social life. The important issue is that lawmakers must carefully study the laws of family development in the period of industrialization and modernization to propose scientific legal norms to anticipate the development of marriage and family in our country in the new period. This we completely

Alimony regime in the law on marriage and family in 2000 - 12

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