Law on Marriage and Family: Volume 1 - Nguyen Ngoc Dien

A mentally ill person (in general, a person who is not aware of his or her actions), but has not been rendered incompetent by a court decision. However, that does not mean that the law recognizes the right to marry for a person who is not aware of his or her actions. It is possible to think in the logic of the matter:

1. If a person who is not aware of his actions decides to marry while he is not aware of his actions, the marriage is invalid because consent does not exist. The moment when the decision to marry must be the same moment when the marriage ceremony is performed before the civil registrar.

2. If a person who is not aware of his or her actions decides to get married while he or she is of sound mind, the marriage is valid, even if, later, he or she is rendered incapacitated by a court decision (if the court decides to render him or her incapacitated, the spouse becomes the natural guardian);

Persons with limited capacity for action . The institution of limited capacity for action is mainly aimed at supervising the establishment and implementation of transactions of the parties related to property. Marriage is not such a transaction. Therefore, the 2000 Law on Marriage and Family does not prohibit marriage for persons with limited capacity for action. In the context of positive law, persons with limited capacity for action can even decide to marry without the consent of their legal representatives.

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c. Imperfect consent c1. Fraud

Evaluation criteria? Current law only has a general definition of deception, recorded in the 2005 Civil Code, Article 132, Clause 1, and is applied to all civil transactions, there is no separate definition of deception in marriage. We say that deception in marriage is when one party intentionally makes the other party misunderstand the subject, nature of the object or content of the transaction so that the other party accepts to establish the marriage transaction. 7 . The definition is very general and difficult to apply. A wants to marry B; C intentionally makes A mistakenly think that he is B; finally, A marries C while thinking that he is married to

B. In the above hypothetical scenario, A could ask for an annulment of the marriage based on fraud. A could also ask for an annulment of the marriage based on fraud, if the man proposed to marry the woman, but ended up treating her like a housemaid.

However, if A wants to marry B because he believes that B is rich and B also intentionally pretends to be rich (even though he is actually very poor) so that A agrees to marry him, it is difficult to say that A has the right to request annulment of the marriage due to deception. It is even more impossible to request annulment of the marriage due to deception if A believes that B is a virgin and B also intentionally pretends to be so, even though in reality, B has had one (or even many) wives.

The Supreme People's Court, for its part, did not establish the concept of fraud in marriage but only gave some examples 8 : called fraud, one party tells the other that

7Colonial Vietnamese law, influenced by French law, did not recognize fraud as one of the grounds for requesting a declaration of nullity of marriage.

8See Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 of the Supreme People's Court, 1, b2.

If married, will apply for suitable job, will sponsor to go abroad; one side is not physically capable but intentionally hides it; knows he is infected with HIV but intentionally hides it;...

c2. Coercion

Coercion by the other party or by a third person . Forced marriage is the act of forcing another person to marry against their will (Law on Marriage and Family 2000, Article 8, Clause 5). The law aims mainly at combating the evils of forced marriage in Vietnamese families that are still influenced by feudal customs in marriage, as well as the arranged marriage system. It should be noted that in practice, forced marriage is understood as the act of a third person, not of one or both parties to the marriage. 9. In the case where one party agrees to marry under pressure from the other party, 10 we have a case of forced marriage, not a case of forced marriage. In general, practice tends to acknowledge that forced marriage is only considered if the coercion is carried out with an immoral motive (for example, forced marriage to collect money or some material benefit for the person forcing the person); And it is that coercion that constitutes the objective aspect of the crime of forced marriage recorded in the 1999 Penal Code, Article 146 11 .

c3. Mistake

Principle: there is no mistake in marriage . Unlike the laws of many countries, current Vietnamese law does not consider mistake as one of the reasons for requesting a declaration of nullity of marriage. If the marriage is agreed to due to mistake, the mistaken person can apply for divorce. If the mistake is the result of deception, then the request for annulment of the illegal marriage due to deception can be made.

A person who is confused about gender can request to annul an illegal marriage due to violation of Article 10, Clause 5 of the 2000 Law on Marriage and Family, if the other party is clearly of the same gender as him/her. Difficulties remain for law practitioners in cases where the other party is unclear about its gender.

3. Obstacles to marriage

a. The marriage is not over

Polygamy is prohibited. A married person is not allowed to marry another person (Law on Marriage and Family 2000, Article 10, Clause 1). This provision, in practice, is aimed primarily at preventing polygamy. Until the abolition of colonial law, polygamy was part of Vietnamese family law.

9According to Resolution No. 02 cited above, a third party can force one or both parties to marry against their will (see 1, b3). For example: the woman's parents, owing the man a sum of money, force the woman to marry the man to pay off the debt; the parents of both parties have made a promise to each other, so they force their children to marry each other;...

10For example, a woman obtains evidence of a man's illegal behavior or debauchery and threatens to make the evidence public if he does not marry her.

In Resolution No. 02 cited above, there are also examples of forced marriage by threatening to use force or material means: see 1, b1.

11When constructing criminal sanctions in Article 146 of the 1999 Penal Code, the legislator again envisioned the concept of

The concept of coercion in the broadest sense: it can be the act of one party to the marriage or of a third person. In that sense, the concept of coercion includes the concept of duress established in Resolution No. 02 cited above.

Of course, a person who has registered for marriage and has not yet terminated the registered marriage is always considered to be married. Also considered to be married is a person who has lived as husband and wife since before the 1986 Law on Marriage and Family without registering their marriage.

b. Relative relationship

Prohibition of incest . According to the 2000 Law on Marriage and Family, Article 10, Clauses 3 and 4, marriage is prohibited between people of the same bloodline, between relatives within three generations; between adoptive parents and adopted children; between former adoptive parents and adopted children; father-in-law and daughter-in-law, mother-in-law and son-in-law, stepfather and stepchild, stepmother and stepchild 12 . The provisions of the written law are quite simple. Customs, depending on the region, may also prohibit marriage between adoptive parents and the wife or husband (widow) of the adopted child, between an adopted child and the biological child of the adoptive parent (and, in general, between a child).

raised with immediate relatives of the adopter)...

In cases where the violators of the marriage prohibition regulations (due to a close relationship) are direct relatives, brothers and sisters of the same father or mother or only of the same father or mother, the parties may be prosecuted for incest (1999 Penal Code, Article 150).

According to Decree No. 87/2001/ND-CP dated November 21, 2001 of the Government, Article 8, those who get married and violate the provisions on marriage prohibition in the 2000 Law on Marriage and Family, Article 10, Clauses 3 and 4, in addition to the case of incest, will be administratively handled in the form of a fine from 100,000 VND to 500,000 VND.

B. Formal conditions

1. Pre-marital procedures

Submit application for marriage registration. Parties wishing to get married must fill out a marriage registration form according to the form issued by the Ministry of Justice. The form must be certified by the agency or unit where they work or by the People's Committee of the commune, ward or town where each party resides, regarding the marital status of the parties. This confirmation of marital status is valid for no more than 30 days (presumably, from the date of confirmation).

The marriage registration form is submitted to the People's Committee of the commune, ward or town where one of the two parties resides, along with the following documents or valid replacement documents:

- Birth certificate of each party;

- Family register of the male or female where the marriage is registered.

In cases where one or both parties have been married but the marriage has ended (due to divorce or death of one party), a copy of the legally effective judgment or decision on divorce or a copy of the death certificate must also be submitted (perhaps, a copy of the previous marriage certificate, if any, or other evidence of the establishment of the previous marriage relationship).

12Adopted children must be counted among those called stepchildren of the wife or husband: there are cases where adopted children are real stepchildren, adopted by the wife (husband) before marriage.

There are also cases where an adopted child is not actually a stepchild. In the context of positive law, a person who lives as husband and wife with another person without registering their marriage cannot adopt a child together with the latter person.

The parties must be present and submit the application in person to the representative of the People's Committee. In case one of the two parties cannot come to submit the application for a valid reason, they can send to the People's Committee where the marriage is registered a request to submit the application in absentia; the request must clearly state the reason for absence, with confirmation from the People's Committee of the commune, ward or town where they reside. This means that at least one party must be present and submit the application in person: the marriage registration application cannot be submitted through the role of an authorized person or by post.

Verification and public posting . After receiving a complete application for marriage registration, the People's Committee must verify the marriage conditions (i.e. the content conditions) and publicly post the application for marriage registration at the People's Committee headquarters13. The posting period is 7 days. If further verification is required, the period may be extended, but the total period must not exceed 14 days. The People's Committee may only proceed with marriage registration once the posting period has expired without anyone objecting to the marriage and, in general, when the posting period has expired without the People's Committee finding any violation by one party or the other or both parties of the marriage conditions prescribed by law.

Refusal to register marriage . In case one or both parties are not eligible to get married according to the provisions of the law on marriage and family, within 7 days (presumably from the date of discovering the ineligibility for marriage), the People's Committee accepting the registration application must invite both parties to the People's Committee headquarters to notify the refusal and issue to the parties a refusal document stating the reasons for the refusal.

The law does not distinguish between refusals based on complaints and denunciations and refusals based on verification results by the People's Committee where the registration is made. In all cases, the People's Committee must be responsible for its refusals. Therefore, if there is a complaint or denunciation14, the People's Committee must verify the actual basis of the complaint or denunciation; if the complaint or denunciation is deemed unfounded, the People's Committee has the right to reject the complaint or denunciation and proceed with the marriage registration for the parties; if the complaint or denunciation is deemed well-founded, the People's Committee has the right to refuse the marriage registration.

The parties have the right to appeal the refusal in accordance with current regulations on handling complaints and denunciations (Law on Marriage and Family 2000, Article 13, Clause 2). The complainant or denouncer, if the People's Committee rejects the application, has the right to sue the Court to annul the illegal marriage as well as the right to denounce the illegal marriage registration act of the civil status officer. The person who registers the illegal marriage may be subject to disciplinary action; if there is further violation, he or she will be prosecuted for criminal liability (Law on Penalties 1999, Article 149).

2. Wedding ceremony

Date and place of marriage registration . The date of marriage registration is determined by the People's Committee and notified to the parties. Normally, the People's Committee does not determine a specific date of registration but only

13The Law only stipulates posting at the headquarters of the People's Committee where the registration is made, and does not provide for posting at the headquarters of the People's Committee where the party resides in case the place of residence of one party is not the place of registration.

Generally speaking, the purpose of posting is to prevent illegal marriages. If for some reason the person concerned cannot prevent the illegal marriage, he or she can also request the annulment of the illegal marriage. Perhaps that is why the legislator did not invest too much effort in perfecting the posting procedure. Moreover, posting the marriage notice is, in fact, not an effective publicity measure: not many people pay attention to the notice. The lack of public interest in posting the marriage notice is a common situation in almost all countries, not just in Vietnam.

14According to the Law on Complaints and Denunciations dated December 2, 1999, Article 33, complaints and denunciations must be recorded in writing.

(meaning in writing); if the complainant or denouncer comes directly to the office to report, the competent official must instruct the complainant to write down the complaints or denunciations on a form signed by the complainant.

The parties are required to come to the People's Committee headquarters to carry out the marriage registration procedure within 7 days from the date of receipt of the notice. In principle, if the parties come at any time during the permitted period for marriage registration, the marriage registration must be carried out; however, the parties should notify the representative of the People's Committee where the registration is made in advance of the intended date of marriage registration to avoid the possibility of the People's Committee being passive in implementing the work schedule.

The place of marriage registration is the headquarters of the People's Committee of the commune, ward or town where the marriage application is received (Decree No. 83-CP, Article 25). For mountainous, remote and isolated areas where travel conditions are too difficult, the marriage registration ceremony can be held in the village (same law). The Supreme People's Court stated that Article 14 (of the 2000-TG Law on Marriage and Family) does not specifically stipulate the location of the marriage registration; therefore, the location of the marriage registration can be a place other than the headquarters of the marriage registration agency (Resolution No. 02, 2, c1).

Marriage registration ceremony . The marriage registration ceremony, within the framework of current law, must be held immediately, once the parties are present on the date and time duly fixed for the marriage registration. The presence of both parties to the marriage is a necessary condition (Law on Marriage and Family 2000 Article 14), therefore:

- If at least one party cannot be present, the marriage registration ceremony must be postponed. In Vietnamese positive law, there cannot be cases of marriage at a distance, through the role of a representative or by absentee marriage procedures 15 ;

- If one party dies before the date fixed for marriage registration, there can be no marriage registration ceremony.

The representative of the People's Committee requests both parties to state their desire to voluntarily marry; if both parties agree to marry16 , the representative of the marriage registration office will invite both parties to sign the marriage certificate and the marriage registration book. The Chairman of the People's Committee will sign and give each party an original copy of the marriage certificate17 , explaining to both parties the rights and obligations of the husband and wife according to the provisions of the law on marriage and family.

Copies and number of copies of the marriage certificate are issued upon request of both parties.

Evidence of marriage. In the context of positive law, marriage registration at a competent State agency is a condition for the marriage relationship to be valid.

15However, according to the Supreme People's Court, "Reality shows that in some cases, for objective or subjective reasons, when registering a marriage, there is only one man and one woman; therefore, if before registering the marriage, the provisions of Clause 1, Article 13 (of the 2000-TG Law on Marriage and Family) are complied with and after the organization of the marriage registration, they actually live together, then the marriage registration is not considered to be not in accordance with the formalities prescribed in Article 14" (Resolution No. 02 cited, 2, c2). With this policy, the Court is not concerned with the impact of marriage registration procedures that require the participation of the parties on the value of the marriage, for example, the question and answer procedure, the procedure for signing the marriage registration book and the marriage certificate. The issue can become delicate where it is necessary to test the perfection of the consent to marry and the mental capacity of the parties at the time of the marriage ceremony.

16It is not excluded that the expressed will is not the real will; therefore, the procedures of questioning (by the People's Committee representative) and answering (by the parties) are only formalities. The parties' declaration of consent to marriage before the

The People's Committee's representative does not prevent the parties from requesting the Court to annul an illegal marriage due to fraud or coercion.

In other words, it is the consent of the parties, not the facilitation of the registrar, that is the condition for the establishment of a marriage.

17So that means the marriage certificate is made in two originals.

recognized by law. Therefore, the only evidence of marriage is a marriage registration certificate issued by a competent authority. “A man and a woman who do not register their marriage but live together as husband and wife are not recognized by law as husband and wife” (Law on Marriage and Family 2000, Article 11, Clause 1).

II. Sanctions for violations of marriage regulations

A. Concepts

Illegal marriage . Illegal marriage is the establishment of a husband and wife relationship with a marriage registration, but violating the marriage conditions prescribed by law (Law on Marriage and Family 2000, Article 8, Clause 3). Therefore, it cannot be considered illegal marriage if the establishment of a husband and wife relationship violates the marriage conditions prescribed by law and is also not registered. We call this type of relationship an illegal marriage-like relationship, which will be studied later.

Violations of the conditions on content and violations of the conditions on form . The provisions related to illegal marriage in the 2000 Law on Marriage and Family only mention cases of marriage that violate the conditions on content: marriage before the minimum age allowed, marriage due to coercion, deception, marriage between relatives... There is no provision stating that marriage is illegal if there are violations of the conditions on form: marriage application is absent or incomplete, receiving documents when neither party is present, receiving documents by post or through an intermediary, no public posting procedure, not respecting the posting deadline, not conducting verification, issuing a marriage registration certificate without asking both parties whether they agree or disagree with the marriage... In general, lawmakers do not consider violations of the conditions on the form of marriage as events that can affect the legality of marriage.

B. Sanctions in case of illegal marriage

1. Annulment of illegal marriage

Persons entitled to request the annulment of an illegal marriage . Persons entitled to request the annulment of an illegal marriage, within the context of current law, are listed in Article 15 of the 2000 Law on Marriage and Family.

- In case of forced or deceived marriage, the party who was forced or deceived, according to the provisions of the law on civil procedure, has the right to personally request the Court or request the Procuracy to request the Court to annul the illegal marriage;

- In the case of underage marriage, marriage with a married person, with a person who has lost the capacity for civil acts, marriage between people of the same bloodline or relatives within three generations, marriage between adoptive parents and adopted children, between people who used to be adoptive parents and people who used to be adopted children, between father-in-law and daughter-in-law, mother-in-law and son-in-law, stepfather and wife's stepchild, stepmother and husband's stepchild, the following people have the right to personally request the Court or propose the Procuracy to request the Court to annul the illegal marriage: wife, husband, father, mother, children of the parties to the marriage; Committee for the Protection and Care of Children; Women's Union.

The Procuracy may also request the Court to annul an illegal marriage in the cases listed in the second group above.

The Law further stipulates that other individuals, agencies and organizations have the right to request the Procuracy to consider and request the Court to annul an illegal marriage. The provision is too broad and, at first glance, may allow any third party to interfere in another person's private life. In practice, if it is determined that the third party has no clear interest in requesting the annulment of the illegal marriage and the request itself does not stem from the protection of the common interest, the Procuracy or the Court will reject the third party's request, especially in cases where the request for the annulment of the illegal marriage is due to confusion about identity, deception, coercion or because one party is in a state of not being aware of his or her actions.

The authority that has the right to annul an illegal marriage . The authority that has the right to resolve requests to annul an illegal marriage is the Court. However, current law has very general provisions on determining the competent Court. In practice, for its part, there is a tendency to acknowledge that the competent Court is the District, Town, City Court of the province where the marriage is registered or where the spouses reside.

Statute of limitations . Current law does not prescribe a statute of limitations for filing a lawsuit to request the annulment of an illegal marriage.

However, it is difficult to imagine the possibility that one party who is married illegally or a State agency or social organization can convince the Court to issue a decision to annul an illegal marriage due to deception or coercion, once the cohabitation has been maintained for a long time (5 years, 10 years, ...): surely the marriage in this case can be considered a civil transaction and can only be annulled within the time limit prescribed in the 2005 Civil Code, Article 136, Clause 1, that is, within two years from the date the transaction was established?

On the other hand, child marriage is no longer valid when the parties have maintained a continuous marital relationship until they reach the required age: if the Court decides to annul the marriage at the request of someone, on the grounds of child marriage, the parties, who are of age and do not wish to terminate their marital relationship, will remarry immediately and the marriage registration cannot be refused.

Certainly, a marriage that violates the provisions prohibiting marriage between relatives or in-laws, at the levels recorded in the 2000 Law on Marriage and Family, Article 10, Clauses 3 and 4, must be annulled, regardless of whether the marriage is existing or has ended.

In cases of violations of monogamy, judges have long held that if other marriages or relationships have ended, the only remaining marriage or relationship is no longer considered a violation of monogamy . 18 However, judicial practice has not yet developed a solution to the problem of determining the legality or illegality of relationships.

18See: Circular No. 112-NCPL dated August 19, 1972 of the Supreme People's Court, II, 2. In fact, this solution is taken up again in Resolution No. 02 dated December 23, 2000 cited above, but is only applied in cases where the previous marriage ended due to divorce: see 2, d3. In the context of the cited Resolution, we have the feeling that, if one of the two marriages has ended due to death, the remaining marriage will not be considered by the Court as violating the monogamy regime; but this feeling is not very strong.

The only remaining relationship, in the context of positive law, is only considered legal if there is a marriage registration and if the conditions regarding the content of the marriage are met .

2. Consequences of illegal marriage annulment

a. Consequences for both parties of illegal marriage

Regarding personal relationships . According to the 2000 Law on Marriage and Family, Article 17, Clause 1, when an illegal marriage is annulled, the man and woman must end their relationship as husband and wife. The question arises: what will be the attitude of public power if the parties do not comply with this provision and still maintain their relationship as husband and wife? The answer of the law is very different, depending on the reason for the annulment of the illegal marriage.

- If the marriage is annulled due to a violation of the regulations on marriage age, the person who continues to maintain a relationship as husband and wife with a person who is not of marriageable age will be subject to administrative sanctions or criminal prosecution for the crime of child marriage, as we know; if neither party is of age to be held criminally responsible, the person who organizes the maintenance of that relationship will be criminally responsible for the crime of organizing child marriage.

- If the marriage is annulled due to violation of monogamy, the parties who maintain the relationship as husband and wife will be subject to administrative sanctions or criminal prosecution for violation of monogamy.

- If the marriage is annulled because the parties are related by direct lineage or are siblings of the same father or mother, the parties who maintain the relationship as husband and wife will be prosecuted for incest.

- If the marriage is annulled due to coercion or fraud, it is also necessary to distinguish:

+ If both parties continue to maintain the marriage voluntarily, then it is considered that there is no longer any coercion or deception. The two parties can re-register the marriage; if they do not re-register, the two parties will fall into a situation of living together as husband and wife without registering their marriage, a situation that the law does not encourage but also does not prohibit.

+ If one party or a third person continues to force the other party to maintain a marital relationship against the other party's will, the coercer may be subject to administrative or criminal sanctions.

In other cases, the current law does not have specific sanctions. It can be imagined that: a relationship like a husband and wife can continue to be maintained between a person with capacity for civil acts and a person without capacity for civil acts or between two people without capacity for civil acts; between a sane person and a person with mental illness or between two people with mental illness; between people who have had a relationship as adoptive parents-adopted children, father-in-law-daughter-in-law, mother-in-law-son-in-law; between people of the same sex, 20 ... Making the same

19The benefits of annulment are the same as in most other cases of annulment: if there was a maintenance obligation established after the divorce, that obligation is extinguished once the marriage is annulled; if the marriage ended due to death, annulment disqualifies the surviving spouse as an heir.

20According to Decree No. 87/ND-CP dated November 21, 2001, Article 8, if marriage occurs between people with relatives within three

In cases of civil disputes, between adoptive parents and adopted children, etc., the parties may be subject to administrative penalties; after the marriage is annulled, if the parties continue to live together, they will only be forced to end their cohabitation relationship; if the parties continue to live together despite being forced to end their cohabitation relationship, then... they will have to give up.

Law on Marriage and Family: Volume 1 - Nguyen Ngoc Dien - 2

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