Overview of Regulations on Prohibited Marriages in the Vietnamese Legal System

Forms and procedures for marriage, some countries also stipulate that the form of marriage must be certified by a competent state agency such as France, China,...

Thus, marriage is the starting point of marriage. The State regulates the conditions for marriage in order to build a happy and prosperous family, and a progressive voluntary marriage. Marriage that violates any of the above conditions is one of the causes of suffering and unhappiness for families and is not in accordance with the good traditions of the Vietnamese family.

1.2. OVERVIEW OF PROVISIONS ON CASES OF PROHIBITION OF MARRIAGE IN THE VIETNAMESE LEGAL SYSTEM

If marriage "is the establishment of a husband and wife relationship by men and women according to the provisions of law on marriage conditions and marriage registration" [52, Clause 2, Article 8] - considered a citizen's freedom, respected and protected by law (Article 39 of the 2005 Civil Code), then marriage prohibition is the case where the law does not allow two people to establish a husband and wife relationship in order to ensure their own rights and interests in the marriage relationship, ensure health, maintain the race, ensure happiness for each family as well as ensure the good customs and moral values of the nation. With that meaning, Vietnamese law through the periods has stipulated cases of marriage prohibition in the marriage regime.

1.2.1. Vietnamese law in feudal period

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Vietnamese feudal society was deeply influenced by Confucian rituals and marriage was no exception, because Confucianism in our country is like "layers of sediment intertwined, tightly woven together, almost like a dense tropical forest". In Confucian rituals, "family" has a great power and ability to control each person, it establishes the ties that bind people tightly. Considering "family" as the root of the country and the world, to rule the country, one must first keep the "family" peaceful, so Confucianism always tries to find ways to build families and clans into "great sevens", powerful forces. With the purpose of strengthening families and clans, the issue of order and discipline is strict.

Strict, proper names, strict family rules... are indispensable elements in the family tradition emphasized and promoted by Confucian rites. Confucianism advocates using virtue to establish and maintain discipline and feudal social order. Confucian rites are concentrated in patriarchal relationships, the relationship between king and subject, the relationship between husband and wife, the relationship between parents and children, the relationship between brothers and sisters, the relationship between teachers and students,... in which subjects must be absolutely loyal to the king, wives must be loyal to their husbands, children must be filial to their parents, brothers and sisters must be responsible to each other,... The Confucian ideology of virtue and rites and the combination of virtue and rule of law have been deeply absorbed into Vietnamese feudal law, becoming the dominant ideology of lawmakers at that time, especially from the Le So dynasty onwards. The Hong Duc Code and the Gia Long Code are two codes that clearly demonstrate the Confucian ideology of morality and etiquette, maintaining morality in the family and society, while also paying attention to the customs and practices of the Vietnamese village system. Regarding the relationship between marriage and family, the issue of marriage is also mentioned quite strictly, the regulations on cases of marriage prohibition are quite rich and clearly demonstrate the will of the legislator to protect social order and class.

The Hong Duc Code stipulates the following cases:

- Marriage is prohibited when a person is in mourning for their father, mother, or husband (Article 317). This is to ensure feudal ethics, to promote filial piety of children towards their parents, and the wife's "chastity" towards her husband.

- Marriage is prohibited when grandparents, fathers, or mothers are imprisoned (Article 318).

This regulation also aims to promote children's "filial piety" towards their parents.

- Marriage between relatives is forbidden; an older brother is forbidden to marry his younger brother's widow, a younger brother is forbidden to marry his older brother's widow, and a student is forbidden to marry his teacher's widow (Article 324). This is to protect the brotherhood and the teacher-student relationship.

- Prohibition of slaves marrying free people (Article 107). This provision clearly shows the viewpoint of strict social stratification and class distinction.

- Male Taoist monks are forbidden from marrying: Monks and Taoists who marry concubines will be punished with 80 lashes and forced to divorce. The bride's host family must be punished and must divorce.

- Prohibition of remarriage of noblewomen: A noblewoman (official's wife) whose husband dies and remarries after the mourning period is over will be punished with 80 lashes, the royal decree previously praised by the king will be confiscated, she must divorce, and the wedding money will be given to the official.

- Officials are prohibited from marrying daughters in the locality where they hold office (Article 316). This prohibition aims to prevent officials from abusing their power to force innocent girls or the girl's family from taking advantage of the marriage to influence the official's power.

- Prohibiting the children of border guards from marrying the children of local chieftains (Article 334). This prohibition aims to prevent collusion between border guards and local chieftains to create rebellious influence.

- Officials, subordinates and their children are forbidden from marrying women and girls who work in the singing profession. If married, they must divorce. (Article 323)

- Prohibiting the powerful from bullying the daughters of commoners into marrying them (Article 338). This is one of the very progressive regulations to protect the rights of women in feudal society.

- Women and girls who are in hiding from a crime are not allowed to marry (Article 339) [70, p. 237].

The Gia Long Code continued to protect the feudal patriarchal family system, promoting the rights of men in the family. The provisions prohibiting marriage included:

- Prohibition of marriage among close relatives, covering beyond the five levels of mourning (Articles 100-102);

- Prohibition of marriage when the order of concubines is broken: Anyone who takes a wife as a concubine will be punished with 100 lashes. If the main wife is still alive and takes a concubine as the main wife, he will be punished with 90 lashes and must correct it. If he already has a main wife and takes another man's wife as the main wife, he will be punished with 90 lashes and must divorce (Article 96);

- Prohibiting officials from marrying women from the lower class as concubines (Articles 103, 183). This regulation is probably intended to prevent officials from abusing their power to force a daughter from a good family to marry, or the girl's family from taking advantage of the marriage to influence the officials;

- Slaves are prohibited from marrying free people (Article 107). The above regulation clearly shows the class perspective.

- It is forbidden for tyrants to forcefully take women and girls as wives (Article 105): Tyrants who rely on their power to forcefully take the wives and children of honest families or take other people's daughters as concubines without going through the engagement ceremony shall be hanged;

- Prohibition of marrying women who have committed crimes and run away (Article 104);

- Prohibition of deception in marriage (Articles 94, 95);

The progressive point of the Gia Long Code is the regulation prohibiting deception in marriage. Common in this case is the phenomenon of marriage without marriage, essentially deception about the subject in the marriage. For example: After marriage, the wife discovers that her husband is not the person she met before marriage. The punishment for deception is severe and different for each violator. If the bride's family deceives, the matchmaker will be punished with 80 lashes, but if the groom's family deceives, the crime is increased by one level and the punishment is 90 lashes, if the marriage is already established, the marriage will be granted a divorce. It is worth noting that the punishment is only applied to the "matchmaker" and not directly to the person getting married. This regulation clearly shows that marriage is a matter between two families and clans, not between the man and woman [35].

Thus, it can be seen that the cases of marriage prohibition stipulated in the feudal law are quite rich and clearly demonstrate the will of the legislator to protect order and class in the family and society. In the family, the role of parents with children, husband with wife is promoted, protecting the order and traditional values of the Vietnamese family. However, there are still regulations that show progress, aiming to ensure the rights of women.

1.2.2. Vietnamese law during the French colonial period

During the French colonial period, our country under the French colonial rule still maintained feudal production relations. In addition, the French colonialists also took advantage of the feudal marriage and family system that had existed and been maintained in our country before to consolidate their domination. With the "Peace Treaty" in 1883, our country was divided into three regions: Bac Ky, Trung Ky and Nam Ky with different political regimes. Therefore, during this period, there were three Civil Codes applied to regulate marriage and family relations. In Bac Ky, the provisions of the 1931 Civil Code, also known as the Bac Ky Civil Code, were applied. In Trung Ky, there was the Hoang Viet Trung Ky Household Law of 1936, also known as the Trung Ky Civil Code. Nam Ky applied the provisions of the Simplified Civil Code of 1883. In terms of legislative techniques, it can be seen that all three codes were influenced by French law. The provisions regulating marriage relations are all provisions of the Civil Code. In terms of content, in general, the Civil Code of Tonkin and the Civil Code of Central Vietnam both reflect Vietnam's traditional customs and practices on marriage and family. The Simplified Civil Code, in particular, was heavily influenced by the French Civil Code of 1804, so it has many innovations according to the concepts of Western lawmakers.

Basically, the cases of marriage prohibition in all three Civil Codes during the French colonial period have similarities, showing the transfer of traditional values from the law of the feudal period through regulations such as: Prohibition of marriage when parents are in mourning (the mourning period is 27 months); Prohibition of taking a second wife if the main wife has not been married; Prohibition of marrying another person if the existing marriage with the main wife has not been dissolved; If the main wife dies, the husband can only marry another wife after the mourning period for the main wife has ended (1 year). Widows must mourn their husbands for 27 months before remarrying, after 10 months of divorce, the wife can marry another person; Prohibition of marrying direct relatives and some people in the collateral line. Regarding the prohibition of marriage in the collateral line, the Civil Code of Tonkin and the Civil Code of Central Vietnam only prohibit marriage between a sister-in-law and a younger brother.

Husband, between sister-in-law and brother-in-law, the man is also allowed to marry the wife's sister or sister-in-law. This clearly shows the Vietnamese concept of "internal relatives, external relatives". A woman who marries belongs to her husband's family, but a man who marries does not belong to his wife's family, when the wife dies, he has no more connection with his wife's sisters. The Simplified Civil Code has more open regulations on marriage prohibitions for people in the collateral line. That is, marriage is prohibited between half-siblings or half-siblings; between cousins up to the sixth degree; between nieces and uncles or between nephews and aunts. Thus, according to the Simplified Civil Code, marriage between sisters-in-law and brothers-in-law, or between sisters-in-law and brothers-in-law is not prohibited.

It can be said that, compared to the marriage prohibition regulations in the feudal period law, the scope of marriage prohibition in all three Civil Codes of the French colonial period was narrower. The prohibition regulations aimed at protecting the feudal class order were no longer recorded in the marriage law of the French colonial period. It can also be assessed that in terms of legislative techniques, it was also a significant step forward in enriching legal scientific knowledge [35].

1.2.3. Vietnamese law since the August Revolution in 1945 to present

The success of the August Revolution liberated the Vietnamese people from the colonial feudal rule, opening a new era in the history of Vietnamese marriage and family. The established people's government immediately implemented the "realization of gender equality". The first Constitution of the Democratic Republic of Vietnam in 1946 was of great significance in fundamentally changing the marriage and family relations of the Vietnamese people. Article 9 of the 1946 Constitution affirmed: "Women are equal to men in all aspects" [47]. This is the recognition of women's equality, the legal basis for abolishing the feudal marriage and family regime, and building a new marriage and family regime. Next, the marriage and family law of Vietnam in the modern period is still marked by

imprinted itself in Vietnamese society with a massive system of documents with high legal effect. First, there were two Decrees: Decree No. 97-SL dated May 22, 1950 amending a number of rules and regulations in civil law and Decree No. 159-SL dated November 17, 1950 regulating the issue of divorce. With such fundamental values, these two Decrees still did not reflect the reality of this historical period. The two Decrees had not yet completely eliminated the feudal marriage and family system, and were still influenced by Confucian ideology. After the victory of the Dien Bien Phu campaign in 1954, our country was temporarily divided into two regions, the South and the North, with two different political regimes. The socio-political situation placed our country's revolutionary cause in this period on two strategic tasks: the North was liberated, entering the transitional period of building socialism; the South continued the national and democratic revolution, fighting for national reunification.

* In the North: At this time, Decree No. 97 and Decree No. 159 had fulfilled their historical role, although they contributed to the abolition of the backward feudal marriage and family regime, they could no longer meet the development situation of the Revolution. "The promulgation of a new law on marriage and family has become an urgent requirement of the whole society. It is an objective necessity to promote the cause of building socialism in the North of our country" [5]. The birth of the 1959 Law on Marriage and Family of Vietnam - the first law on marriage and family in the legal history of Vietnam as a new step forward that completely changed the face of marriage and family relations. The 1959 Law on Marriage and Family, in the spirit of inheriting the two Decrees above, determined the purpose of marriage and family to build happy, democratic, and harmonious families, in which everyone is united, loves each other, and helps each other to progress. The 1959 Law on Marriage and Family stipulates cases where marriage is prohibited:

- Prohibit married people from marrying other people (Article 5);

- Prohibit marriage between people of the same bloodline; between adoptive parents and adopted children; prohibit marriage between biological siblings, siblings with the same father

For those who are related within five generations or have direct lineal relationships, marriage will be resolved according to custom (Article 9)

- The following people are not allowed to marry: completely impotent; have one of the following diseases: leprosy, venereal disease, mental disorder, and have not been cured (Article 10).

- In addition, Article 3 also stipulates: Prohibiting early marriage, forced marriage, preventing free marriage, demanding property in marriage, etc., prohibiting taking concubines.

* In the South: After 1954, the US imperialists replaced the French colonialists, carried out a plot to permanently divide our country, and waged a new type of war of aggression. The system of legal documents on marriage and family issued by the reactionary puppet state of the Saigon puppet government with outdated content, includes the following documents:

- Family Law of January 2, 1959 (Law No. 1-59) under the Ngo Dinh Diem regime

- Decree No. 15/64 dated July 23, 1964 on marriage, filiation and community property

- Civil Code dated December 20, 1972 under the Nguyen Van Thieu regime

Basically, all three of these documents have a relatively broad scope of marriage prohibition: Marriage is prohibited between relatives in the direct line, regardless of official or extramarital basis, regardless of rank (1972 Civil Code). Decree No. 15/64 has a broader scope of prohibition: Marriage is prohibited between relatives, subordinates or that person's spouse, in the direct line, regardless of whether it is official or extramarital or adopted. Under the Ngo Dinh Diem regime: Direct relatives by blood or marriage, regardless of official or unofficial or extramarital or adopted, at any level, are prohibited from marrying each other. Regarding the prohibition of marriage within the collateral line, all three documents have similarities such as: Marriage is prohibited between siblings of the same parents, siblings with the same father but different mothers, or siblings with the same mother but different fathers. Adopted siblings are prohibited from marrying each other. Marriage is prohibited between children of paternal uncles, paternal aunts, paternal aunts, and paternal aunts on both sides.

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