In cases where there is a significant difference in the living standards of the father and mother, the stabilization of the material conditions for the child's life is also an issue that needs to be resolved within the framework of the decision on child custody.
The will of the child . According to the law, the will of the child is only taken into account once the child is 9 years old or older. However, this does not mean that the judge has no right to listen to the wishes of a child under 9 years old: once he has a certain cognitive capacity, the child has the right to express his opinion. This solution is in line with the spirit of the New York Convention of 26 January 1990 on the Rights of the Child. However, listening to the opinion of a child under 9 years old, in the context of positive law, is not an obligation for the judge.
71. In any case, the judge has the right to consider such wishes only as advisory opinions: even if the child wants to live with the mother, the judge can entrust the child to the father's custody, once he considers that this is better for the child's future.
c. Change of child care provider
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Husband, wife and judge . According to Article 93 of the 2000 Law on Marriage and Family, the change of the person directly raising the child after divorce is carried out in cases where the person directly raising the child does not ensure the child's interests in all aspects and must take into account the wishes of the child, if the child is 9 years old or older. However, the Law adds: "For the benefit of the child, at the request of one party or both parties, the Court may change the person directly raising the child". The Law does not recognize the role of a third party, especially the role of the child's relatives, the child protection agency, the Procuracy,... in cases where the father or mother who does not directly raise the child does not request a change of the person raising the child and the child himself does not have any special wishes, due to not being able to perceive enough to express his wishes, or even not daring to express his wishes... because of fear.
In fact, child rearing is one of the forms of exercising parental rights towards children, and at the same time is one of the family issues that society is most concerned about. The social nature of child rearing becomes more pronounced in the context of a family in crisis, the peak of which is marked by the divorce of the father and mother. In cases provided for by law, a father or mother may have their parental rights towards their children restricted at the request of the remaining mother or father or another family member, of the Procuracy, of another agency, organization or individual, as we know. Combining the provisions related to the restriction of parental rights and the provisions on changing the child's custodian, it can be stated that family members who are not the father or mother, the Procuracy, other agencies or organizations also have the right to request the Court to decide to change the child's custodian, or even request the child to be taken care of by a third party, if such change is in the child's best interests.
71On the contrary, listening to the opinions of minor children aged 9 years or older is mandatory for judges, according to Official Dispatch No. 61/2002/KHXX, dated May 20, 2002 of the Supreme People's Court. According to the same Official Dispatch, this is mandatory even in cases where parents agree to divorce and have reached an agreement on child custody: if the child's opinion (aged 9 years or older) is not asked and a decision is made to recognize the divorce by mutual consent, it is considered as not having investigated fully.
The Supreme People's Court also held that the content of the child's wishes (minors under 9 years old) is one of the bases for evaluating the agreement between parents on child custody after divorce: if the child's wishes are consistent with the parents' agreement, then that agreement is considered to meet the conditions for protecting the child's legitimate rights and interests, as stipulated in the 2000 Law on Marriage and Family, Article 90.
B. Visitation rights
Forms of exercising parental rights of the person who does not directly raise the child . According to Article 94 of the 2000 Law on Marriage and Family, after divorce, the person who does not directly raise the child has the right to visit the child; no one is allowed to prevent that person from exercising this right. The right to visit is one of the basic conditions to ensure the exercise of parental rights in cases where the father or mother does not directly raise the child. Closely linked to parental rights, the right to visit includes the right to supervise the care, upbringing, and education of the child by the person who directly raises the child.
Visitation rights are exercised at the discretion of the person entitled to visit and are not bound by agreements with the custodial parent. The person entitled to visit may visit regularly or on an ad hoc basis; visits may be made in person or by telephone and other means of communication. However, the exercise of visitation rights must be consistent with the normal schedules of the child and the custodial parent.
Visitation rights cannot be restricted or suspended solely because the non-custodial parent fails to properly fulfill his or her support obligations.
However, in the case where the person who does not directly raise the child abuses the right to visit the child to hinder or negatively affect the care, education, and upbringing of the child, the person who directly raises the child has the right to request the Court to restrict that person's right to visit the child (Law on Marriage and Family 2000, Article 94). It seems that the right to visit the child will also be restricted, the person whose parental rights to the child are restricted by the Court.
PART FOUR
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OBLIGATION TO SUPPORT
Concept . Alimony can be understood as the act of one person transferring without compensation some of his/her assets to another person living in poverty, so that the latter can use and dispose of those assets to meet the essential needs of his/her life.
SECTION I. RIGHT TO REQUEST SUPPORT
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The right to be guaranteed the satisfaction of basic needs . The right to request maintenance is the right to request material support to meet the basic needs of the person entitled. Ultimately, the establishment of the institution of the right to request maintenance is based on basic human rights: being born and alive, everyone has the right to live and society must create favorable conditions for people to exercise their right to live; one of the primary material conditions of life is having something to eat, to wear, to live,...
To clarify the subject of the right to request maintenance, it is only necessary to clarify the concept of "essential needs". According to Decree No. 70/2001/ND-CP dated October 3, 2001, Article 16, Clause 2, the essential needs of the person receiving maintenance as prescribed in Articles 51, 52 and 53 of the Law on Marriage and Family 2000 are determined based on the average living standards in the locality where the person receiving maintenance resides, including the usual necessary expenses for food, accommodation, clothing, education, medical examination and treatment and other usual necessary expenses to ensure the life of the person receiving maintenance. In general, these are the necessary expenses for maintaining the material life of the person receiving maintenance and, if this person can still develop mentally (as in the case of the person receiving maintenance being a minor), the necessary expenses for maintaining and strengthening the conditions for that development. The needs for entertainment, recreation and relaxation are not counted among essential needs.
Although the law does not explicitly state it, it can be stated that the person receiving maintenance, in the event of death, is also entitled to cover the costs of burial: the person with the obligation to provide maintenance cannot abandon the body of the person receiving maintenance to the cleaning company, but must carefully organize the burial of this person, according to acceptable rituals.
Essential needs of the individual, not essential needs for the individual . A cursory reading of the relevant rules would give the impression that the legislator, when speaking of “essential needs”, had in mind only individuals who are not bound by a custodial relationship with another person as a person with a duty to support. In many cases, adult children or siblings may
72. Once the child (who is also the head of the family) is hungry, then certainly all the family members that the child is responsible for will also be hungry. It cannot be said that the obligation to provide maintenance is only intended to save the adult child or his or her siblings from starvation; what about their own family is irrelevant. To be more specific, the so-called essential needs whose satisfaction is guaranteed by the performance of the maintenance obligation must be understood in the broadest sense, as all the needs necessary for the material life of the individual requesting maintenance as well as for all those whom this person, by law, is directly responsible for supporting .
I. Establishing the right to request alimony
A. Methods and conditions for establishment
1. Method
Two methods . According to the 2000 Law on Marriage and Family, Article 50, Clause 1, the obligation to provide support is performed between parents and children, between siblings, between grandparents and grandchildren, between husband and wife according to the provisions of this Law. Article 50, Clause 2 further stipulates that in case the person with the obligation to provide support evades the performance of that obligation, the obligation to provide support must be performed according to the provisions of this Law.
From these provisions, it can be noted within the context of current law, two methods of establishing the right to claim maintenance.
- The method corresponds to the 2000 Law on Marriage and Family, Article 50, Clause 1. The law establishes a principle on the basis of which, the relationship of maintenance obligation, according to the provisions of law, is formed between the pairs of subjects listed in the law, in special cases. We temporarily call these the relationship of maintenance obligation prescribed by law or the relationship of maintenance obligation without sanctions.
- The method corresponds to the 2000 Law on Marriage and Family, Article 50, Clause 2. The obligation to provide maintenance is recognized as a sanction for those who violate the obligation to provide maintenance. We temporarily call this relationship of maintenance obligation a relationship of maintenance obligation with a sanctioning nature.
2. Conditions
a. Economic status of the person requesting alimony
Inability to work and no property to support oneself . If all relatives have a full material life, then no one has the obligation to support anyone. Even a person who lives in poverty but is able to solve the problems of his material life by his own labor, does not have the right to request support. We will see, except in the case of support for his wife.
72There are even cases where a parent lives with an adult sibling who is disabled, unable to work, and has no assets. In that case, the parent also has the obligation to support that sibling.
husband after divorce, that the person receiving maintenance, if not a minor, can only establish the right to request maintenance in the case of "inability to work and no property to support himself". How to understand that phrase in the context of the provisions on maintenance obligations?
Inability to work . What is considered inability to work depends on the judge's assessment. An unemployed person is not necessarily incapable of work; a disabled person may also be able to work;... Perhaps the ability to work mentioned in the relevant laws is mainly the ability in terms of physique, muscles and skills that allow the person to perform a job (regular or irregular), either as an individual, individual worker, or as a hired worker, in order to generate income to support himself and his family. It cannot be said that he is incapable of working, a muscular, healthy person who can be used well in jobs that require manual labor, but only dreams of jobs in very specialized fields that he is not qualified to enter and therefore, is not interested in being recruited by anyone, and eventually falls into poverty. On the contrary, it can be considered that a person is incapable of working if he accepts to do any job within the framework of the law, to earn an income, but no one is willing to hire him.
No assets to support oneself . It is not necessary that the person requesting maintenance has no assets at all. The person requesting maintenance may have original assets, but the assets do not generate profits 73 or generate profits and have been exploited according to the owner's ability, but are not enough to meet the basic needs of his family. The person requesting maintenance may also have regular or irregular income from work, even receiving benefits (disability, injury, ...) and has mobilized all
their sources of income but still cannot satisfy the minimum spending requirements for their daily life and that of their family.
b. Status of the person requested for support
Ability and conditions to provide support . If all the people involved are unable to work and have no assets to support themselves, each person must manage on their own. The person requested to provide support must only fulfill the obligation to provide support once he or she has the material ability and conditions to support the person requesting it.
Decree No. 70/2001/ND-CP cited Article 16, Clause 1, which stipulates that a person who has the actual ability to perform the alimony obligation prescribed in Articles 51, 52 and 53 of the Law on Marriage and Family is a person who has a regular income or, although not having a regular income, still has assets after deducting the usual expenses necessary for that person's life. 74 . The wording of the law allows thinking that only a person who has an income (even if it is irregular) and can ensure that he or she can meet the essential needs of his or her life can be considered to have the ability to provide alimony. Law
refers only to “the life of that person” (of the person obliged to provide maintenance), as well as to the person entitled to maintenance. In most cases, the party also has
73For example, there is a cottage, some household items,... that cannot be rented out to anyone.
74Assets and income here must be net assets and income, meaning after deducting input costs, taxes, and debt. More
Furthermore, the property must be a material expression of income, profits, and profits, not the original assets.
A husband or wife even has children of their own to support. Logically, “his or her life” must be understood in the broadest sense: not only the life of the individual, but also the life of his or her household, that is, of those for whom he or she is directly responsible. One cannot be forced to sacrifice his or her own family to save the family of another.
B. Specific maintenance relationships
1. Establishing the right to request alimony without sanctions
The establishment of the right to request non-punitive maintenance is stipulated in the 2000 Law on Marriage and Family, Articles 56 to 60. We have maintenance rights in the relationship between parents and children, between siblings, between grandparents and grandchildren, and between husband and wife after divorce.
a. Relationship between parents and children
Parents provide child support after divorce . According to the 2000 Law on Marriage and Family, Article 56, upon divorce, the father or mother who does not directly raise a minor child or an adult who is disabled, has lost civil act capacity, is unable to work and has no property to support himself or herself has the obligation to provide child support.
We have said that the parent-child relationship does not depend on the nature of the relationship between the father and mother. Therefore, after a divorce, the person who does not directly raise the child still has the obligation to care for and raise the child. However, in the case of a divorce and the child must live with one of the two parents, the person who does not directly raise the child can perform the obligation to raise the child in the form of maintenance and the person who directly raises the child has the right to request the person who does not directly raise the child to pay maintenance, instead of the normal maintenance applied when the parents still maintain a marital relationship. It must be emphasized that the child receiving maintenance must be the common child of the husband and wife; the law does not distinguish between biological or adopted children.
Also according to the 2000 Law on Marriage and Family, Article 17, Clause 2, in case the marriage between parents is annulled, the rights of the child shall be resolved as in the case of divorce. Therefore, when the marriage is annulled, the person who does not directly raise the minor child or an adult child who is unable to work and has no assets to support himself/herself has the obligation to provide child support.
Children support their parents . According to the 2000 Law on Marriage and Family, Article 57, adult children who do not live with their parents have the obligation to support their parents who are unable to work and do not have property to support themselves.
Certainly, children have the obligation to provide support to their parents, once they have reached adulthood and are able to work in the condition that their parents do not live together, are unable to work and have no property. The question arises: do adult children who have lost their capacity to act or are not aware of their actions or have limited capacity to act, but have profitable assets, have to provide support to parents who do not live together with them? Current law does not have an official answer to this question. In any case, providing support to parents without the nature of a sanction is a form of implementing the obligation to support in special cases where parents live separately from their children and are unable to work and have no property to support themselves. The law, when developing
The relationship of support between a child who has the obligation to support him/her and a parent who has the right to support him/her, regardless of whether the child is a minor or an adult. Therefore, it can be believed that even if an adult loses his/her capacity to act or is not aware of his/her actions or has limited capacity to act but has profitable assets, the obligation to support (not having a sanctioning nature) can still be binding on this person: the performance of that obligation is guaranteed by the role of the representative.
b. Relationship between brothers and sisters
Provisional maintenance . According to Article 58 of the 2000 Law on Marriage and Family, in the event that siblings no longer have parents or parents are unable to work and do not have assets to support their children, the adult sibling who does not live with the younger sibling has the obligation to support the minor sibling who does not have assets to support himself or herself or the adult sibling who does not live with the older sibling has the obligation to support the older sibling who does not have the ability to work and does not have assets to support himself. We immediately see the first condition for the obligation to support between siblings to arise: no longer have parents or parents are unable to work and do not have assets to support their children. To some extent, siblings can be considered as having a provisional obligation, after parents, to those for whom parents are responsible for supporting.
c. Relationship between grandparents and grandchildren
. Paternal (maternal) grandparents provide support for their grandchildren . According to the 2000 Law on Marriage and Family, Article 59, Clause 1, paternal and maternal grandparents who do not live with their grandchildren have the obligation to provide support for their grandchildren in cases where the grandchildren are minors or adults who are unable to work, do not have property to support themselves and do not have anyone to provide support as prescribed in Article 58 of this Law. When talking about minor grandchildren, the law maker does not add "no property to support themselves" as in the case of the provision on support obligations between siblings. However, the Law only binds paternal (maternal) grandparents to the obligation to provide support for their grandchildren in cases where the grandchildren do not have anyone to provide support as prescribed in Article 58, that is, in cases where there are no parents or the parents do not have the conditions to provide support and there are no siblings or there are siblings who also do not have the conditions to provide support. Therefore, it can be admitted that paternal (maternal) grandparents are only the provisional supporters of their siblings, or even the true provisional supporters, that is, they must only provide support when the person receiving support falls into the right situation where they can receive support from their siblings, if there are siblings and these people have the conditions to provide support.
Grandchildren provide maintenance for their paternal (maternal) grandparents . Adult grandchildren who do not live with their paternal (maternal) grandparents have the obligation to provide maintenance for their paternal (maternal) grandparents in cases where the grandparents are unable to work, do not have assets to support themselves, and do not have anyone to provide maintenance according to the provisions of this Law (Law on Marriage and Family 2000, Article 59, Clause 2). This means that grandparents have the right to request maintenance for their grandchildren when they do not live with their grandchildren and they themselves no longer have parents, children, brothers, sisters, or these people do not have the conditions to provide maintenance.
d. Relationship between husband and wife
Alimony after divorce . In current law, the issue of alimony between spouses is only raised after divorce. The marital relationship terminated by divorce must be a legal marital relationship. There are cases where, after divorce, the previous marriage is annulled by a judgment or decision of the Court at the request of the divorced spouse or a third party; in that case, the obligation of alimony must be annulled.
Furthermore, divorce is only one of the necessary conditions. Article 60 of the 2000 Law on Marriage and Family stipulates that upon divorce, if the party in difficulty or poverty requests maintenance with a legitimate reason, the other party has the obligation to provide maintenance according to his or her ability. It is necessary to emphasize the first three words of the law - "upon divorce". In many cases, each party has a normal material life when divorcing; but after a period of time, one party, due to some objective or subjective reason, falls into difficult circumstances. Surely in the mind of the law maker, the party in difficulty in this case cannot request the other party to provide maintenance. To be more specific, the living conditions on which the law relies to determine whether or not there is a maintenance obligation of one party to the other in a divorce case are the living conditions recorded at the time of divorce. At that time, alimony was considered a measure to support the divorced person to avoid disruptions in material life as a direct consequence of the divorce event.
However, it should be noted that unlike the person entitled to claim maintenance in other cases, the person entitled to maintenance as a divorced spouse does not necessarily have to be in a state of being unable to work and having no assets to support himself/herself. As long as this person falls into a state of living that has significantly declined compared to before the divorce and that decline has one of the direct causes being the divorce, the right to request maintenance is established.
2. Establishing the right to request punitive maintenance
The concept of “evading the obligation to support” . The establishment of the right to request support as a sanction is recognized for all cases between the person with the right and the person with the obligation to support and the person with the responsibility to support deliberately avoids that responsibility. The law uses the word “evading” to refer to the behavior of the person with the obligation to support, because of which the person can be forced to perform the obligation to support. What is evading the obligation to support? It is true that when faced with the request
legitimate and urgent request of the person being nurtured 75 , the person with the obligation to nurture but shows indifference, without any action showing goodwill to respond, is clearly an evasive person; the person with the obligation to nurture but refuses to receive the person being nurtured to listen to the latter present his or her requests related to the implementation
The person who has the obligation to support but makes empty promises and does not specifically meet the requirements of the person being supported is also an evader.
a. Parent-child relationship
Parents provide child support . Parents only have the obligation to care for and raise minor children or adult children who are disabled, have lost their capacity for action, are unable to work and have no property to support themselves (Law on Marriage and Family).
75The person being fostered is hungry and needs something to eat; is sick and needs some money for medical expenses;...