Overview of the Marriage Regime in the Vietnamese Legal System Through the Periods

called the Napoleonic Code. As a product of the codification process between the normative provisions of Roman law and some contemporary customs, the French Civil Code is often considered a golden rule for other countries to learn from when building civil law. To this day, we still cannot deny the exemplary nature of the provisions in French civil law. The French Civil Code devotes Chapter V, Book 3, to regulating marriage contracts and marital property regimes. Chapter V opens with Article 1378: “The law does not regulate the property relationship between husband and wife if the husband and wife have a separate agreement that the husband and wife consider appropriate and not contrary to good customs or the following provisions” [40, p. 109]. Therefore, when a husband and wife make a marriage contract, the property regime of the husband and wife will be regulated by the marriage contract. The husband and wife can freely agree on property issues, but it must comply with the law in both content and procedure.

In addition, as a country in the Asian region, Japan also has its own legal document regulating the form of marriage contracts and the issue of marriage registration. The content of the marriage contract is stipulated in the Civil Code. Article 755 of the Japanese Civil Code recognizes the right of married couples to form a marriage contract: the property rights and obligations of the spouses will be subject to the following provisions if the spouses do not sign a contract specifying their property before registering their marriage. Article 756 of the Japanese Civil Code stipulates: If the husband or wife does not sign any contract specifying their property before registering their marriage, their property relations will be governed by the provisions of subsection II (subsection regulating the legal property regime). The law also stipulates: If a couple has a property agreement that provides for something different from the statutory property regime, this prenuptial agreement cannot be used against the first-degree heir of the spouse or a third party unless it is registered before the marriage is registered.

In addition, the concept of promoting the right to freedom and self-determination of property of spouses is also recognized and expressed in the legal provisions of Thailand. Although Thailand is an Eastern country, following Buddhism, but with the ability to easily accept and adapt, the existence of a marriage contract in Thai law is not difficult to understand. The marriage contract is regulated in the property section of the Thai Civil and Commercial Code (Articles 1465 to 1493). Article 1465 of the Thai Civil and Commercial Code stipulates: In case the spouses do not have a special agreement on their property (marriage contract) before marriage, their property relationship will be regulated by the general provisions of this chapter. The marriage contract will be invalid if there is any

any clause contrary to public order or social morality or stipulating that their property relations will be governed by foreign law. Thus, in terms of content, in addition to the common characteristics of marriage contracts in many countries, marriage contracts in Thailand also have additional conditions on the applicable law, in which some countries allow spouses to choose foreign law as the applicable law.

A marriage contract is only valid between people who have a legal marriage relationship and helps create conditions for spouses to be more independent in organizing their finances and planning their future. Although not perfect, the marriage contract and the marital property regime also originate from the common interests of the family and are intended to contribute to the sustainability of family happiness.

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Formally, the marriage contract must be made in writing and signed by the man and woman about to become husband and wife. The laws of many countries often stipulate that the marriage contract must be notarized and the competent authority must confirm its legality (by notarization and registration of the marriage contract at the same time as the marriage registration).

The marriage contract is the legal basis for protecting the property rights and personal rights of the spouses, and is also the basis for ensuring that the spouses fully perform their property obligations to their families and society. Based on the stability, longevity and sustainability of the family, the provisions stipulated in the marriage contract according to the legislative perspective of the countries are immutable and cannot be changed. Article 1395 of the French Civil Code of 1804 stipulates: The marriage contract cannot be changed after marriage. Article 761 of the Japanese Civil Code also stipulates that the marriage contract cannot be changed during the marriage period unless the husband or wife is the property manager and has an act of dissipating the property and to change the marriage contract, the parties must file a petition with the court. And in Thailand, Article 1467 of the Thai Civil and Commercial Code also stipulates that after marriage, the marriage contract cannot be modified unless approved by a competent court, and when there is a final decision on the modification or cancellation of the marriage contract, the court must notify the place of marriage registration about that matter. Although modified or canceled by the court, some provisions of the marriage contract will not be effective against a third party in good faith.

It can be seen in the regulations of countries that basically the marriage contract is highly stable and cannot be changed after marriage. However, the principle that the marriage contract cannot be changed during the marriage period can cause negative effects on the interests of the family, the husband and wife themselves or the interests of third parties having a transactional relationship with the couple when the couple has mistakenly chosen a property regime that is completely inappropriate to the conditions, family circumstances, professional conditions, etc. To overcome the limitation

In addition to the above regime, some countries have now recognized that prenuptial agreements can be changed during marriage under strict legal conditions. Article 1397 of the French Civil Code stipulates: After two years of applying the marital property regime by agreement or by law, the spouses may, for the benefit of the family, request to amend or completely change the marital property regime by a notary certified certificate and approved by the Court of their place of residence. The Japanese Civil Code does not specifically regulate this issue, but according to Articles 758 and 759: Jointly owned property can be changed or divided in cases where the spouses have an agreement or in cases where the spouses manage each other's property, but that person does not manage the property well and the other has requested the Marriage and Family Court to revoke the said management. The change or division of joint property cannot be used against the legal heir of the husband or wife unless it has been registered. Thus, under Japanese law, the basis for determining the property of the spouses stipulated in the marriage contract can also be changed to suit the reality of the creation, possession, use and disposal of property between the husband and wife.

Thus, according to the agreed matrimonial property regime, both husband and wife have the right to freely agree on issues related to their property during the marriage. The agreement must be made in writing and made before the marriage. The purpose of agreeing on the matrimonial property regime during the marriage is to ensure the freedom and self-determination of citizens, help the judicial authorities resolve disputes easily and conveniently, minimize disputes that arise in practice but still ensure the interests of the family and family members are always respected.

In Vietnam, the 2014 Law on Marriage and Family also has provisions and recognizes a new matrimonial regime in addition to the statutory matrimonial regime, which is the consensual matrimonial regime. Specifically, Clause 1, Article 28 of the 2014 Law on Marriage and Family of our country stipulates: "Spouses have the right to choose to apply the statutory property regime or the consensual property regime" [38, Clause 1, Article 28].

It can be said that, in any era, in any political regime or economy, the issue of marital property is always a matter of concern to society and lawmakers. However, whether choosing a statutory matrimonial property regime or choosing both statutory and consensual matrimonial property regimes, there are certain advantages and limitations. Each country bases on its socio-economic conditions, customs, practices and good cultural traditions to choose to apply a suitable matrimonial property regime. However, society is always changing in different directions.

different, a trend that is taking place widely and rapidly is the trend of globalization, the need for cooperation and development in all aspects leads to the increasing need for agreement on issues related to the property of spouses, the old regulations before do not meet the need to resolve disputes, therefore the choice and recognition of the marital property regime by agreement is a trend and an objective necessity of development.

1.3. Overview of the matrimonial regime in the Vietnamese legal system through the periods

1.3.1. The marital property regime in feudal law

The typical legal system of this period includes the National Dynasty Penal Code (QTHL, also known as Hong Duc Law) promulgated under the Le Dynasty (1470 - 1497) and the Hoang Viet Law (HVLL, also known as Gia Long Law) promulgated under the Nguyen Dynasty (1812). Both documents have provisions on marriage and family, but the marital property regime of husband and wife is not regulated as a separate and specific regime. The provisions of the law are unclear, there are no provisions mentioning the marital property of husband and wife during the marriage period, but only provide for some cases of dividing the property of the wife when one of the husband and wife dies first (Articles 374, 375, 376). The Hoang Viet Law, because it copied the original text of the Qing Dynasty, also has no provisions on the property of husband and wife, but only regulates marital issues (Article 94 regulates the issue of annulment).

Through studying the regulations related to the issue of marital property in the QTHL and HVLL as well as the customs implemented in feudal society, it can be seen that the marital property regime of husband and wife in the feudal period was a legal community property regime. This property regime was applied as the only one for marital relations. The type of contractual marital property regime (marriage contract) applied to couples today in many capitalist countries during this period was unknown.

Accordingly, all assets acquired by the spouses before marriage or created during the marriage are part of the common property of the spouses, including movable assets (QTHL calls them tangible assets) and real estate (land assets). In which, land assets are considered the main asset, occupying an important position in the common property of the spouses. With the view that land assets are the main asset, QTHL has stipulated that the components of the common property of the spouses include three types: The husband's property inherited from the husband's family (Phu gia dia san); The wife's property inherited from the wife's family (The

property and assets that the couple created during the marriage (land and property).

All these properties are under the management of the husband and are only divided when one of the husbands or wife dies first and there are no children between them. Although deeply influenced by the Confucian ideology of male superiority over female, the Le Dynasty law also gave the wife the right to participate in managing the common property with her husband. The ancient documents established under the Le Dynasty on the disposition of property such as selling, donating, giving, and mortgaging must be made in a will, which must be made by both husband and wife and signed in the document as stipulated in Articles 374, 375, 376. The husband, as the head of the family, has the right to decide on the family property but must be in accordance with the interests of the family. If it is harmful, the wife has the right to object. The wife is free to dispose of the common property for use in cases serving the essential needs of the family and the husband's consent in this case is implicit. This is a provision not recorded in the HVLL, because it is copied verbatim from the Qing Dynasty Law, so in the HVLL the wife is considered incompetent. However, in the QTHL, the wife has equal rights to property with her husband, but only for the first wife (main wife). As for the concubine, the law has no provisions, through this we can understand that there is no common property between the husband and the concubine.

1.3.2. Matrimonial property regime in the law during the French colonial period

French colonialism was a period in Vietnamese history that lasted more than eighty years, starting when France forced the Hue Court to accept the Giáp Thân Treaty (1884) until France lost its rule in Indochina. With a policy of divide and rule, France divided Vietnam into three separate regions and promulgated and applied three separate sets of laws to regulate marriage and family relations, including the property regime of spouses.

- In the North, the 1931 Civil Code was applied (DLBK).

- In Central Vietnam, the 1936 Civil Code was applied (DLTK)

- And in the South, the Simplified Civil Law was promulgated in 1883 (DLGYNK).

In general, the legal provisions of this period to regulate the relationship between marriage and family had new nuances compared to the ancient law of feudal Vietnam. Besides the long-standing customs in feudal society, the legislators followed the French Civil Code (1804) when regulating the marriage and family regime as well as the marital property regime of husband and wife. The relationship between husband and wife in the law of this period still implemented the principle of inequality, the wife was dependent on the husband in all aspects, wherever the wife lived and what she did had to be approved and permitted by her husband.

The matrimonial regime applied in Cochinchina is based on the following principles:

The wife has no separate property, so there can be no community of property between husband and wife. All family property is owned and managed by the husband during the marriage as well as after the wife's death. In case the wife dies, the husband is the owner of all family property by virtue of the marriage, not by inheriting the wife's property; but if the husband dies first, the wife only has the right to enjoy and benefit from all family property while she is a widow.

In the North and Central regions, the influence of the French Civil Code (1804) was reflected in the way lawmakers anticipated the marital property regime and applied the immutable principle of the property regime of spouses according to the marriage contract.

Because it was issued later, the DLTK has been amended to be more suitable than the DLBK. Article 104 of the DLBK stipulates: "Regarding property, the law only intervenes in the marital union when the husband and wife do not arbitrarily make a separate agreement with each other, as long as that separate agreement is not contrary to customs and is not contrary to the interests of the husband who is the leader in the union" and any agreement on the property of the husband and wife after marriage cannot be changed (Article 105 of the DLBK). This provision on the pre-determined marital property regime was first envisaged in the Vietnamese legal system from the perspective of bourgeois legislators, but it is not consistent with Vietnamese family customs and traditions, so this pre-determined marital property regime in the DLBK and DLTK is not agreed upon by couples.

In case the husband and wife do not agree to make a marriage contract when entering into marriage, both the DLBK and the DLTK provide for a legal marriage property regime for them according to the community property regime. According to this regime, all the assets and profits of the husband and wife are combined into a common property of the husband and wife. Articles 106 and 107 of the DLBK and Article 105 of the DLTK stipulate: “If the husband and wife do not have a contract with each other, then according to the property consolidation rule, that is, all the income and assets of the husband and wife are combined into one and shared together.”

Both the DLBK and DLTK provide for the components of the marital property of the spouses, including: the husband's share or contribution; the wife's share or contribution; and the couple's common property. At the same time, it also provides for the community property (the couple's common property) to ensure the family's common life as well as the debts the couple borrows for the family's benefit (the consumer property component)...

According to Articles 106 and 107 of the Civil Code and Articles 104 and 105 of the Civil Code, the statutory matrimonial property regime applied to couples who do not make a marriage contract before marriage is a community property regime, with the common property component including: Assets acquired by the spouses during the marriage; Assets earned by the spouses' work and income from all assets in the family, regardless of whether such income is obtained from separate property or common property.

According to Article 111 of the Civil Code and Article 109 of the Civil Code, the community property must bear the following debts: Debts that the couple borrowed before marriage; Debts that the couple borrowed during marriage; Debts borrowed by the wife as a representative of the marital union and debts borrowed with the husband's consent; Debts signed by the wife when legally practicing business or technology; Debts caused by the wife's illegal acts.

Regarding the management, use and disposal of family assets, DLBK and DLTK both provide for the need to distinguish between the powers of the wife and husband in each specific case:

- Husband and wife can agree on their own.

According to Article 100, Article 111 of the Civil Code and Article 98, Article 109 of the Civil Code, for common family needs (such as food, accommodation, medical treatment, etc.), either the husband or wife can represent the family in transactions and the community property is guaranteed for transactions signed by the couple with others.

- The work must be done by both husband and wife.

According to Article 109DLBK and Article 107DLTK, in addition to management, spouses who want to dispose of common property must usually reach an agreement together; the consent can be explicit or implicit.

- The husband can do it alone, but the wife must ask for permission from her husband.

According to Article 98 of the Civil Code and Article 104 of the Civil Code, the husband has the right to do things like establishing an association, borrowing, suing, hiring, etc.; the wife can only do things if the husband allows it, and the husband's permission can be explicit or implicit.

- The husband's privilege in deciding on the common property of the couple.

Article 109 of the Civil Code stipulates that the husband can dispose of common property without the wife's consent, as long as it is used for the benefit of the family, except for real estate that is the wife's separate property.

Thus, on the basis of the legal division of the rights of husband and wife in exercising ownership rights over common property, it can be seen that the injustice and inequality between husband and wife in the family are maintained and applied in colonial and feudal societies. The husband is considered the lord, the dictatorial owner of the family's property, always having the right to decide and manage the property without having to ask for the wife's consent or permission. Meanwhile, the wife is only represented in the common needs of the family; the decision to dispose of valuable property must ask for the husband's permission and consent.

Regarding the division of common property of spouses, the law of the French colonial period provided for a few cases and principles of division. However, unlike the French Civil Code (1804) which provided that when a spouse dies, the community property regime will end and be paid; case law in Cochinchina still applies the provision that the community property regime continues. According to the provisions of Article 113 of the Civil Code and Article 111 of the Civil Code, if the husband dies and the wife does not remarry, the common property will remain intact and the wife will manage the property; if the wife dies, the husband will be the owner of all the property, including the wife's share. This provision shows the injustice in the provisions of the law regarding the rights of the wife.

Regarding the division of property when a husband and wife divorce, DLBK and DLTK determine the amount of community property that will be divided. Regarding the method and conditions of division, if the husband and wife have a marriage contract when getting married, the property will be divided according to the marriage contract. If the husband and wife do not have a marriage contract, the provisions of the law will apply and will be divided into two cases: having children and not having children.

In case the couple has no children, the wife has the right to reclaim her share of the property in kind. If the wife's separate property has been sold for family use or for the husband's own use, the wife cannot reclaim it. After the share of the property has been returned to the husband and wife, the remaining common property will be divided in half, with each husband and wife having one half.

In case the couple has children together, the wife cannot reclaim all of her separate property, those properties will be joint property and managed by the husband, reserved for the children. DLBK and DLTT have determined that when the couple divorces and has children together, the joint property will not be paid. According to Article 112 of DLBK, when the couple divorces and has children together, the wife will receive a part of the joint property, the amount of which will be determined by the Court based on the wife's contribution. Meanwhile, Article 110 of DLTK provides that the wife's share will be 1/3 of the total.

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